Can President Duterte still appoint the replacement for Supreme Court (SC) Senior Associate Justice Estela M. Perlas Bernabe after her compulsory retirement on May 14 or five days after the May 9 national and local elections?

Following the March 17, 2010 SC decision which became final and executory on April 20, 2010, the President can appoint Bernabe’s replacement.

Among other issues, settled with finality by the SC in the 2010 decision was whether then President Gloria Macapagal Arroyo could still appoint a Chief Justice as replacement for then Chief Justice Reynato S. Puno who, at that time, was to retire on May 17, 2010, or seven days after the May 10, 2010 national and local elections.

The decision in the consolidated cases, denominated as Arturo M. De Castro vs. Judicial and Bar Council (GR No. 191002), was written by then Associate Justice Lucas P. Bersamin who also eventually became Chief Justice and retired on Oct. 11, 2019.

Settled by the SC was the provision in Section 15, Article VII of the Constitution on the ban on appointments by the President two months before the presidential election and up to the end of his/her term.

The 2010 decision ruled that the ban under Section 15, Article VII of the Constitution does not include appointments to fill up a vacant post in the SC.

The SC ruled:

“The records of the deliberations of the Constitutional Commission reveal that the framers devoted time to meticulously drafting, styling, and arranging the Constitution.

“Such meticulousness indicates that the organization and arrangement of the provisions of the Constitution were not arbitrarily or whimsically done by the framers, but purposely made to reflect their intention and manifest their vision of what the Constitution should contain.

“The Constitution consists of 18 Articles, three of which embody the allocation of the awesome powers of government among the three great departments, the Legislative (Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a true recognition of the principle of separation of powers that underlies the political structure....

“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. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII.

“That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the President's or Acting President's term does not refer to the Members of the Supreme Court.”

Section 4 (1), Article VIII of the Constitution states: “The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.”

The finality of the decision on April 20, 2010 led then President Arroyo to appoint the late Renato C. Corona as Chief Justice on May 12, 2010 to replace then Chief Justice Puno who retired on May 17, 2010.

There are seven aspirants to the post that would be vacated by Senior Associate Justice Bernabe.

They are, in alphabetical order, Court of Appeals (CA) Associate Justices Maria Elisa S. Diy, Apolinario D. Bruselas Jr., Ramon A. Cruz, and Fernanda Lampas Peralta; Sandiganbayan Associate Justice Geraldine Faith A. Econg; and CA Associate Justices Ronaldo Roberto B. Martin and Maria Filomena D. Singh.

The JBC – the constitutional office that accepts, screens, and nominates appointments to the judiciary – has scheduled public interviews of the seven aspirants.

To be interviewed on Tuesday, April 5, are Diy, Bruselas and Cruz. Peralta, Econg, Martin and Singh will be interviewed on Wednesday, April 6.

“The public may submit a sworn complaint, report, or opposition against any of the candidates by mail to JBC, 2nd Floor, Centennial Building, Supreme Court, Padre Faura St. Manila, or through the JBC drop box, or by electronic mail to [email protected] not later than 4:30 p.m on 11 April 2022,” the JBC said through Marife M. Lomibao Cuevas, SC clerk of court and JBC ex-officio secretary.

Should the JBC submit to the President its nominees before or immediately after Bernabe’s retirement and the President names a new associate justice, he or she would be the President’s 13th incumbent appointee in the 15-member SC.

The Duterte-appointed incumbent members of the SC are Chief Justice Alexander G. Gesmundo and Associate Justices Ramon Paul L. Hernando, Amy C. Lazaro Javier, Henri Jean Paul B. Inting, Rodil V. Zalameda, Mario V. Lopez, Samuel H. Gaerlan, Ricardo R. Rosario, Jhosep Y. Lopez, Japar B. Dimaampao, Jose Midas P. Marquez, and Antonio T. Kho Jr.

After the retirement of Bernabe, the two other incumbent members –Associate Justices Marvic M.V.F. Leonen and Alfredo Benjamin S. Caguioa – were appointees of the late President Benigno S. Aquino III.

The appointment of a new SC associate justice would elevate Leonen to the post of senior associate justice.