Writing Sample 1: Law Paper (Philippines)

MEMORANDUM

TO: ​Atty. XXX ​DATE:​ March 15, 2010

FROM:​ Annamarie Junel G. de Mata

1E

We reply to your request for a legal memorandum on whether President Gloria Arroyo should
appoint a new chief justice. Pursuant to your request, this memo includes the analysis of the
relevant laws and jurisprudence.

Statement of Facts

Chief Justice Reynato S. Puno will retire on May 17, 2010 upon reaching the age of 70, 44 days
until the end of President Arroyo’s term. On the said date, there will be a vacancy in the position
of chief justice. Anticipating said vacancy, Representative Matias Defensor, Jr., a member of the
Judicial and Bar Council (JBC) moved for the JBC to start the process of nominating applicants
for chief justice and to submit to the President a list of three (3) nominees for the position.
However, considering that the vacancy on May 17 leaves President Arroyo only 44 days of
office, any appointment she will make within the said period falls within the prohibition on
midnight appointment as provided in Article VII, Section 15 of the 1987 Constitution.

Since the Constitution provides for a two-month ban on appointments by the president before
her term expires, GMA is said to be prohibited from making appointments from March 10 to
June 30, 2010. Representative Defensor, however, opines that the president should appoint the
next chief justice given that:

1. There should always be a functioning Supreme Court composed of a Chief

Justice and fourteen Associate Justices.
2. The Chief Justice is required to personally certify every decision rendered by the
Supreme Court.
3. Without the Chief justice, the Supreme Court cannot exist.
4. The Supreme Court cannot have a temporary Chief Justice in a crucial period
such as presidential elections.
 5. Once there is a failure of elections, the four highest officials of the land will be out
in office; and once there is no chief justice, nobody can run the country for in the
1935 Constitution, the Chief Justice follows the succession.

The palace also insists that the President should appoint the next chief justice despite strong
oppositions by the President’s critics and the position taken by the Integrated Bar of the
Philippines (IBP) and some retired justices of the Supreme Court that the President cannot
appoint the next chief justice for it will violate the constitutional provision. This is in view of
Section 4 (1) of Article VIII of the 1987 Constitution which provides that:

The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. ** **.
Any vacancy shall be filled within ninety days from the occurrence thereof.

Due to these conflicting views regarding the appointment of the next chief justice, some sectors
suggested that the President should appoint a chief-justice-in waiting before the start of the ban
or before March 10 so when Chief Justice Puno retires, his replacement could immediately
assume office.

Discussion

The constitutional provision governing the prohibition is Article VII, Section 15 of the 1987
Constitution which provides that:

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.

A reading of the said provision reveals that the president is proscribed from making
appointments two months before his/her term expires. However, there is an exception:
“temporary appointments to executive positions when continued vacancies therein will prejudice
public service or endanger public safety.” It should be noted that the position of chief justice is
not an executive provision and therefore does not fall within the exception.

Given that the occurrence of vacancy in the position of chief justice is on May 17 or 44 days
before President Arroyo’s term expires, she is prohibited from making any appointment within
that period pursuant to the above provision. The two-month ban is expressly stated in the said
provision and therefore should be construed in its literal sense.
As to the suggestions of other sectors for President Arroyo to appoint a chief-justice-in-waiting
who will assume Chief Justice Puno’s position once he retires is simply not allowed. There are
several decided cases stating that in order for an appointment to be valid, the position should be
vacant. Among these cases are ​Costin vs. Quimbo and ​Morata vs. Court of Appeals. ​In ​Costin​,
it is ruled that no matter how qualified a person is for a particular position, he/she still cannot be
appointed to a position that is not vacant. Meanwhile, in ​Morata​, the court ruled that any
appointment to a position that is not vacant is void ​ab initio. Following jurisprudence, if President
Arroyo will appoint a chief-justice-in-waiting, said appointment is void and therefore cannot be
enforced.

In the 1962 case of ​Aytona vs. Castillo,​ the Supreme court had the occasion to struck down as
illegal the so called “midnight appointments” issued by President Carlos P. Garcia. All in all,
about three hundred fifty (350) "midnight" or "last minute" appointments. Said appointments
were revoked by President Macapagal by issuing Administrative Order number 2.

Another case which provides aspect of the danger of “midnight appointments” is ​In Re
Appointments dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta
as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabananatuan
City. ​The question presented in this case was whether , during the period of the ban on
appointments imposed by Section 15, Article VII of the Constitution, the President is
nonetheless required to fill vacancies in the judiciary, in view of Sections 4(1) and 9 of Article
VIII. The Supreme Court held that in view of the period stated in Section 15, Article VII of the
Constitution, the President is neither required to make appointments to the courts nor allowed to
do so. The Court further held that Sections 4 (1) and 9, Article VIII of the Constitution should
mean that the president is required to fill vacancies in the courts within the time frame provided
unless prohibited by Section 15, Article VII. Following the doctrine laid down by this case,
President Arroyo is banned from making any appointment during her remaining term as it falls
within the prohibition in Section 15, Article VII of the Constitution. Given said prohibition, she
cannot invoke Section 4 (1), Article VIII of the Constitution.

With regard the issue of the problem that might arise during the coming Presidential election,
Constitutionalist Joaquin Bernas pointed out that the problems that can arise during the
elections do not necessarily need a chief justice for the following reasons:

1. Administrative matters go to the COMELEC first.

2. Contests in local elections go to local courts first or to the Commission on Elections.
3. Contests in congressional elections go to the Senate or House Electoral Tribunals where
a Chief Justice does not participate.
4. Presidential election contests go to the Supreme Court; but the Chief Justice is not the
Supreme Court. At most his is only one vote out of fifteen.
 5. The same can be said about appeals to the SC of election cases. The quorum of the
Court ​en banc​ is only eight, not fifteen.

Moreover, as said vacancy will occur a week after the elections, the new President should then
be the one to appoint the new chief justice. Since the new president will assume office on July
1, he will still have 45 days within which to appoint the next chief justice. That is enough time for
him to make the appointment given that the Constitution expressly states that vacancy should
be filled within 90 days.

Conclusion

Given the constitutional provisions as well as jurisprudence above stated, President Arroyo
therefore is precluded from appointing the next chief justice. As expressly stated by no less than
the Constitution, “Midnight appointments” are strongly discouraged and forbidden.