House Speaker Prospero Nograles debunked Thursday claims by some quarters that President Arroyo is prohibited under the Constitution to appoint the next chief justice, saying there is no such constitutional impediment should the Chief Executive decide to do so.

This despite two conflicting provisions in the Constitution that bar the President from making an appointment two months before and after elections, and the requirement to fill up vacancies in the Supreme Court within 90 days from its occurrence.

“There is no constitutional impediment against President Gloria Macapagal-Arroyo appointing the next Chief Justice of the Supreme Court during the remainder of her term to replace retiring Chief Justice Reynato Puno,” Nograles said.

“As a lawyer, I agree with Senate President Juan Ponce Enrile regarding his position about the appointment of the Chief Justice,” said Nograles.

He added that “national security and national interest dictate there ought to be no hiatus in the judiciary, especially during the crucial period when the nation is holding the national and local elections.”

Enrile earlier this week said the President can legally appoint the successor to Puno, who retires on May 17, and that the appointee need not undergo review by the Judicial and Bar Council if the next Chief Justice comes from the ranks of the sitting justices.

“That prohibition pertains to the executive and not to the judiciary,” he was reported as saying.

For his part, Sen. Francis Pangilinan insisted President Arroyo should not bypass the JBC in appointing the next chief justice.

"No JBC list, no valid appointment," Pangilinan said.

Pangilinan said the current administration apparently wants to rush the appointment of a new chief justice but he said doing so without asking for JBC recommendation is unconstitutional.

“Art. 8, Sect. 9 of the Constitution provides that members of the SC shall be appointed by the President from a list of at least three names prepared by the JBC," he said.

In addition, Article 8, Section 4 of the Constitution identifies the Chief Justice and the 14 associate justices as members of the SC.

Thus, as a member of the Court and consistent with Article 8, Section 9, the Chief Justice must be appointed by the President from a list prepared by the JBC, he said.

“Without this list, a Chief Justice cannot be appointed by the President," Pangilinan pointed out.

The Liberal Party senator also asserted that the appointment of a new SC chief would violate the constitutional ban on midnight appointments.

Pangilinan said it would be best for Malacanang to abandon its plan and spare the Court and the Office of the Chief Justice from controversy, adding that President Arroyo should allow the next administration to choose the next SC head.

“The biggest loser in this, should it escalate into an acrimonious legal battle, is the Court itself. The damage that can be done to the office of the Chief Justice being embroiled in an appointment of doubtful legality will be immeasurable, and its consequences far reaching," Pangilinan said.

"It could very well pit justices against justices, and may sharply divide the Court and the legal community in an unprecedented manner. This can lead to very damaging consequences for the rule of law," he added.

Chief Presidential Legal Counsel Raul Gonzalez meanwhile encouraged the JBC to start the screening and nomination process for the replacement of Puno.

“The opposition is making a big fuss out of anything especially if it is something to do with President Arroyo. That’s not surprising. They are already nitpicking,” he added.

Puno’s retirement on May 17 is covered by the election period where government appointments are prohibited.

A provision in the Constitution prevents the President from making appointment two months before the elections and up to the end of his or her term.

But Gonzalez, a former justice secretary, made clear that the 90-day prohibitive period only applies to appointments in lower courts as well as executive offices. The President’s appointment of the next Chief Justice could not be considered a midnight appointment, he added.

Gonzalez said the JBC should start the screening process for nominees and submit the list to the President “in clear anticipation” of Puno’s departure from the judiciary.

Should the JBC fail to submit a shortlist after Puno retires, Gonzalez said the President can appoint Puno’s successor from the 14 sitting magistrates.

“I don’t understand why the JBC won’t start the process. I sat at the JBC for four years and in anticipation of vacancies, the JBC invites the nominees. There is now a clear anticipation of Puno’s retirement; they can now call for nominees and deliberate on this,” he said.

Gonzalez was also not keen on proposals to appoint an acting Chief Justice. An acting Chief Justice could only be appointed in normal situations when the Chief Justice is on a mission abroad, he said.

“But not on a situation like this when there is really a vacancy in the SC leadership,” he said.