DE CASTRO v.
JBC ISSUE: WON the JBC have the power and authority to resolve the constitutional question
G.R. No. 191002
March 17, 2010
DOCTRINE: Appointments; Midnight Appointment Ban; The prohibition against presidential
appointments under Section 15, Article VII does not extend to appointments in the Judiciary
 the incumbent President can appoint the successor of Chief Justice Puno upon his
retirement on May 17, 2010, on the ground that the prohibition against presidential
appointments under Section 15, Article VII does not extend to appointments in the
Judiciary
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
Section 4(1) imposes on the President the imperative duty to make an appointment of a Member of the
Supreme Court within 90 days from the occurrence of the vacancy—the failure by the President to do
so will be a clear disobedience to the Constitution; The 90-day limitation fixed in Section 4(1), Article
VIII for the President to fill the vacancy in the Supreme Court was undoubtedly a special provision to
establish a definite mandate for the President as the appointing power
Appointments; Judicial and Bar Council; The Judicial and Bar Council (JBC) has no discretion to submit
the list of nominees to fill a vacancy in the Supreme Court to the President after the vacancy occurs,
because that shortens the 90day period allowed by the Constitution for the President to make the
appointment
The duty of the Judicial and Bar Council (JBC) to submit a list of nominees before the start of the
President’s mandatory 90-day period to appoint is ministerial, but its selection of the candidates whose
names will be in the list to be submitted to the President lies within the discretion of the JBC
FACTS: Petitioners Arturo M. De Castro and John G. Peralta PRAYED THAT THE JBC BE COMPELLED
TO SUBMIT TO THE PRESIDENT THE LIST OF AT ELAST 3 NOMINEES FOR THE POSITION OF THE
NEXT CHIEF JUSTICE
 PHILCONSA had the same prayer
 Petitioner Mendoza seeks a ruling from the Court for the guidance of the JBC on whether
Section 15, Article VII applies to appointments to the Judiciary
FORTHCOMING COMPULSORY RETIREMENT OF CJ PUNO [seven days after the presidential
election]
 Under Section 4(1), in relation to Section 9, Article VIII, that “vacancy shall be filled within
ninety days from the occurrence thereof” from a “list of at least three nominees prepared
by the Judicial and Bar Council for every vacancy.”
 JBC opened the position of Chief Justice for application or recommendation, and
published for that purpose its announcement
o existing practice, the JBC “automatically considered” for the position of Chief
Justice the five most senior of the Associate Justices of the Court
 Carpio, Corona, Carpio Morales, Velasco and Nachura
o Others either applied or were nominated
 Next Step: invite the public to file their sworn complaint, written report, or opposition
 JBC is not yet decided on when to submit to the President its list of nominees due to
the controversy now before us being yet unresolved.
whether the President can appoint CJ during the election period
WON the President can appoint during the election ban the successor of CJ Puno when he
vacates the position of Chief Justice on his retirement
WON the constitutional prohibition against appointment under Section 15, Article VII of the
Constitution applicable only to positions in the Executive Department
HELD:
ACTUAL CONTROVERSY RIPE FOR JUDICIAL DETERMINATION
 JBC already commenced the proceedings for the selection of the nominees to be included
in a short list to be submitted to the President
 Although the position is not yet vacant, the fact that the JBC began the process pursuant
to its rules and practices, although it has yet to decide whether to submit the list of
nominees to the outgoing President or next President, makes the situation ripe for
judicial determination
 WON the JBC properly initiated the process, there being an opposition that JBC could only
do so once the vacancy has occurred
Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the
Supreme Court or to other appointments to the Judiciary
 Two constitutional provisions are seemingly in conflict.
o Section 15, Article VII (Executive Department), provides:
 Section 15. Two months immediately before the next
presidential elections and up to the end of his term, a President
or Acting President shall not make appointments, except
temporary appointments to executive positions when continued
vacancies therein will prejudice public service or endanger public
safety.
o Section 4 (1), Article VIII (Judicial Department), states:
 Section 4. (1). 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.
SC: the incumbent President can appoint the successor of Chief Justice Puno upon his
retirement on May 17, 2010, on the ground that the prohibition against presidential
appointments under Section 15, Article VII does not extend to appointments in the Judiciary
1. Deliberations of Constitutional Commission reveal that framer arrangement of the
provisions of the Constitution were not arbitrarily or whimsically done
o Article VII is devoted to the Executive Department
 The presidential power of appointment is dealt with in Sections 14,
15 and 16 of the Article.
o Article VIII is dedicated to the Judicial Department
 Section 9 states that the appointment of Supreme Court Justices can
only be made by the President upon the submission of a list of at
least three nominees by the JBC;
 Section 4(1) of the Article mandates the President to fill the vacancy
within 90 days from the occurrence of the vacancy
 o 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.
o Intent of the Constitutional Commission
 filling of a vacancy in the Supreme Court within the 90-day period
was a true mandate for the President
 THE THE 90-DAY LIMITATION FIXED IN SECTION 4(1), ARTICLE
VIII FOR THE PRESIDENT TO FILL THE VACANCY IN THE
SUPREME COURT WAS UNDOUBTEDLY A SPECIAL PROVISION to
establish a definite mandate for the President as the appointing
power, and cannot be defeated by mere judicial interpretation in
Valenzuela to the effect that Section 15, Article VII prevailed because
it was “couched in stronger negative language.”
 Such interpretation was against the records of the
ConCom’s deliberations
 Valenzuela arbitrarily ignored the express intent of the
Constitutional Commission to have Section 4 (1), Article VIII stand
independently of any other provision, least of all one found in Article
VII.
2. Section 15, Article VII does not apply as well to all other appointments in the
Judiciary
o UNDERLYING REASON of ADOPTION of SEC. 15: ELIMINATE MIDNIGHT
APPOINTMENTS from being made by an outgoing Chief Executive
 1) those made for buying votes and (2) those made for partisan
considerations
 Second type: “midnight” appointments
 EXCEPTION: temporary appointments to executive positions when
continued vacancies will prejudice public service or endanger public
safety
o SC: NO DOUBT that the Constitutional Commission confined the
prohibition to appointments made in the Executive Department.
 did not need to extend the prohibition to appointments in the
Judiciary,
 because their establishment of the JBC and their
nomination and screening of candidates for judicial
positions to the unhurried and deliberate prior process of
the JBC ensured that there would no longer be
midnight appointments to the Judiciary.
 the appointments to the Judiciary made after the establishment
of the JBC would not be suffering from defects such as it being
made in hast and with irregularities
 The intervention of the JBC eliminates the danger that appointments
to the Judiciary can be made for the purpose of buying votes in a
coming presidential election or satisfying partisan consideration
 the creation of the JBC was precisely intended to de-
politicize the Judiciary by doing away with the
intervention of the Commission on Appointments.
3. The non-applicability of Section 15, Article VII to appointments in the Judiciary was
confirmed by then Senior Associate Justice Regalado to the JBC itself
4. Out of 23 sections in Article VII, 3 sections(i.e., Section 14, Section15, and Section
16) concern the appointing powers of the President
o power of the succeeding President to revoke appointments made by an Acting
President, pertaining only to appointments in the Executive Department.
 It has no application to appointments in the Judiciary, because
temporary or acting appointments can only undermine the
independence of the Judiciary due to their being revocable at will
o Sec 16: covers only the presidential appointments that require confirmation by
the Commission on Appointments.
 Yet, because of Section 9 of Article VIII, the restored requirement did
not include appointments to the Judiciary
o Section 14, Section 15, and Section 16 are obviously of the same character, in
that they affect the power of the President to appoint.
o The fact that Section 14 and Section 16 refer only to appointments within
the Executive Department renders conclusive that Section 15 also applies
only to the Executive Department.
5. To hold Sec. 15 extends to appointments in Judiciary undermine the intent of
CONSTI of ensuring the Independence of Judiciary from other departments
6. FLAWED Argument: there is still 45 days
o because it is focused only on the coming vacancy occurring from Chief Justice
Puno’s retirement by May 17, 2010. It ignores the need to apply Section 4(1) to
every situation of a vacancy in the Supreme Court.
7. As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list is
necessary at all for the President—any President—to appoint a Chief Justice if the
appointee is to come from the ranks of the sitting justices of the Supreme Court
OTHER MATTERS:
A. Writ of mandamus does not lie against the JBC
o The duty of the JBC to submit a list of nominees before the start of the
President’s mandatory 90-day period to appoint is ministerial,
 but its selection of the candidates whose names will be in the list to
be submitted to the President lies within the discretion of the JBC.
o The object of the petitions for mandamus herein should only refer to the duty
to submit to the President the list of nominees for every vacancy in the
Judiciary
B. Writ of prohibition does not lie against the JBC
o petition for prohibition in G.R. No. 191032, which proposes to prevent the JBC
from intervening in the process of nominating the successor of Chief Justice
Puno, lacks merit
o only the President can appoint the Chief Justice