Senate President Juan Ponce Enrile on Tuesday said President Arroyo need not wait for a Judicial and Bar Council recommendation in choosing the successor of Chief Justice Reynato Puno, although he said the President should wait for Puno to retire before she appoints a replacement.

Puno, who was appointed by former President Fidel V. Ramos in 1993, is set to retire 45 days before Mrs. Arroyo steps down from the presidency.

“She must not do that now, she needs to wait until he retires,” Enrile said in Filipino during an interview over DZRH.

“A minute after retirement, pwede na siyang mag-reappoint ng tao na pipiliin niyang (she can already reappoint the person she picks as the new) Chief Justice,” Enrile pointed out.

Enrile said the President can appoint the next chief justice, without JBC intervention, from any of the 14 associate justices that would remain in the high court. He also said only the President has the power to appoint the next SC chief.

“She can choose from among the 14 associate justices that would remain without having to pass through the Judicial and Bar Council,” Enrile said.

Enrile said the Constitution states that the Supreme Court is composed of the Chief Justice and the 14 associate justices who should be appointed by the President. The Constitution also says that the 15 members of the SC need to undergo the process of the JBC.

But the Constitution does not have any provision as to how the President should appoint the next Chief Justice without the successor going through the JBC and without being confirmed by the Commission on Appointments.

“Yung puwesto na iiwan ni Chief Justice Puno, yun ang pinaka-junior na maging mahistrado. Kaya ang Presidente (pwedeng) pumili dun sa mga senior justices, 14 na maiiwan, na Chief Justice dahil hindi niya pwedeng lagyan ng kapalit yung bakante sapagkat kailangan ang rekomendasyon ng JBC,” said Enrile.

"Pero yung Chief Justice, kapag siya ang pumili, hindi na kailangan ang rekomendasyon ng JBC,” he said.

“It should be separate; when appointing the next Chief Justice it should no longer pass through the JBC but filling the vacant seat that would be left should pass through the Council,” Enrile said.

Enrile aired his position to dispute the insistence of government critics that under the Constitution, the appointment of a successor to the Chief Justice cannot be made by President Arroyo.

Former Senate President Franklin Drilon and other members of the opposition have taken the position that the President cannot make the appointment in light of Section 15, Article VII (Executive Department) which prohibits the President from making appointments within “two months before the next presidential elections and up to the end of his term x x x.”

An exemption to this proviso is temporary appointments to executive positions when continued vacancies would prejudice public service or endanger public safety, Enrile said.

“It (Sec. 15, Art. VII) was pertaining to the executive department, not the judiciary,” Enrile pointed out. “If there is a vacancy, even in the period of prohibition, the President can appoint on that day.”