Constitutionalist Fr. Joaquin Bernas on Friday said President Arroyo should let her successor appoint the replacement for outgoing Chief Justice Reynato Puno to preserve the credibility of the Supreme Court.

Bernas, one of the framers of the 1987 Constitution, said Mrs. Arroyo should not let the justices fight over the issue of whether or not she can appoint the next SC chief despite the constitutional ban against “midnight appointments.”

“The very dangerous thing here is to let the Supreme Court fight over this, that the justices will fight among themselves. This would really destroy the credibility of the Supreme Court,” Bernas said during a forum held at the Traders Hotel in Pasay City.

At the same time, the Jesuit priest said the SC itself could prevent credibility loss by stopping the Judicial and Bar Council from submitting to Mrs. Arroyo a list of nominees to succeed Puno, who will retire on May 17.

The position of Bernas was supported by former Senate President Franklin Drilon, one of the forum panelists, who cited a number of SC rulings that say the President cannot make appointments two months before the presidential elections and until June 30.

He recalled that in 1998, the SC even directed the JBC not to proceed with the nomination process for two vacant lower court positions and eventually ruled that the President cannot make appointments two months before the next presidential elections and until June 30 as provided for in Article VII, Section 15 of the Constitution.

The High Court came out with the decision despite the provisions of Article VIII, Section 9, which mandates the President to issue judicial appointments within 90 days from submission of the list by the JBC.

Drilon said such ruling should also apply in the case of Chief Justice appointments even as he agreed with Bernas that there must be a way for the two contradictory provisions in the Constitution – Articles VII and VIII – to be both effective.

Bernas said both laws will be allowed to take effect if Mrs. Arroyo will accept the fact that she no longer has the power to appoint when the vacancy in the SC occurs since Puno’s retirement date falls within the election period when midnight appointments are prohibited.

He said Mrs. Arroyo should let her successor exercise the power to appoint the next Chief Justice. He said the incoming President still has 45 days to comply with the 90-day period within which a vacancy in the judiciary must be filled.

Bernas said the appointments ban takes precedence over the 90-day period, noting that the provision against midnight appointments in Article VII is general, while the command in Article VIII to fill the vacancy in 90 days is special to the High Court.

“An accepted principle is that a special law creates exemption to a general law. But again Article VII is in negative language, whereas Article VIII is positive. Another accepted principle is that negative language carries stronger weight in law than positive,” Bernas added.

Reached for comment, SC spokesman Jose Midas Marquez said the case cited by Drilon in which the SC enjoined the JBC to stop the nomination process involves only judges, “not the Chief Justice who is the chief executive of the entire judiciary.”

He also said that before the High Court acts against the JBC shortlist, a petition must be filed before the High Court.

“There is no case filed with the court. The court cannot do it. There has to be a petition,” Marquez said.

As regards Bernas’ position, Marquez said the views of the dean emeritus of the Ateneo Law School are all noted.

“We respect his opinion. Remember the JBC itself said it wants to listen to the views of all constitutional experts and Fr. Bernas is one of them,” Marquez said.