Those believing that President Arroyo should let her successor name the next Supreme Court Chief Justice have found an ally in one of the possible contenders to replace outgoing Chief Justice Reynato S. Puno: Associate Justice Conchita Carpio Morales.

Morales has informed the Judicial and Bar Council (JBC) that she is interested in the position and would want to be considered as a nominee, provided that the JBC shortlist is submitted to the next President.

Should she succeed Puno, Morales would be the first woman to become Chief Justice.

The Puno-led JBC earlier wrote Morales informing her that she is being considered for nomination along with four other senior members of the High Court.

It is the “policy and practice” of the JBC to automatically consider for nomination to the top SC post the “first five qualified senior Associate Justices” of the 15-member tribunal, according to the constitutional body that screens nominees to vacancies in the judiciary.

The JBC, through its ex-oficio secretary Ma. Luisa Villarama, the SC Clerk of Court, requested Morales to manifest in writing whether she is interested to be nominated in accordance with Section 5 and 8, Rule I of the JBC Rules.

In her letter-reply dated January 22, Morales wrote: “Upon understanding that the nomination is to be submitted to the next President of the Philippines in light of the constitutional ban on the incumbent President to appoint a Chief Justice after CJ Puno retires on May 17, 2010, I hereby manifest my interest to be considered for nomination to the position.”

Morales’ stance echoes the position earlier taken by various sectors and legal personalities, including constitutionalist Fr. Joaquin Bernas who said Mrs. Arroyo cannot name Puno’s replacement since this would violate the election appointments ban provided under Article VII, Section 15 of the Constitution.

Bernas, one of the framers of the Constitution, said the provision against “midnight appointments” takes precedence over Article VIII, Section 9, which mandates the President to fill up the vacancy in the judiciary within 90 days from the submission of the JBC shortlist.

Noting that Article VII is in negative language while Article VIII is positive, Bernas said an accepted principle is that “negative language carries stronger weight in law than positive.”

The dean emeritus of the Ateneo Law School said there must be a way for the two contradictory provisions in the Constitution to be both effective.

He 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.

Thus, Mrs. Arroyo should let her successor exercise the power to appoint the next Chief Justice, he said, adding that the incoming President still has 45 days from the time he assumes office on June 30 to comply with the 90-day period within which a vacancy in the judiciary must be filled.

The JBC earlier agreed to start accepting nominations or recommendations for the Chief Justice post but deferred decision on when to submit the shortlist to the “proper appointing authority” in light of conflicting views on the matter.

Aside from Morales, the JBC is also considering Associate Justices Antonio T. Carpio, Renato C. Corona, Presbiterio J. Velasco Jr. and Antonio Eduardo B. Nachura for the top SC post.

However, Velasco has begged off from the race.

In a letter addressed to Puno, Velasco said the nomination should only include the three most senior SC associate justices – Carpio, Corona and Morales.

“I read in the newspapers that I may be a possible candidate for the position of Chief Justice after your retirement. I would like to inform the Council that if ever I will be considered for the position of Chief Justice, I will formally decline the nomination because I believe the nomination should be limited to the top three senior associate justices,” Velasco told Puno in a letter dated January 18.

Of the 14 associate justices of the High Court, Carpio is the most senior, having been appointed by Mrs. Arroyo on Oct. 26, 2001.

Corona and Morales, also Arroyo appointees, were appointed to the tribunal on April 9, 2002 and Sept. 2, 2002, respectively.