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The existence of a presumption indicating the guilt * EN BANC.

667
of the accused does not in itself destroy the
VOL. 615, March 17, 2010 667
constitutional presumption of innocence unless the
inculpating presumption, together with all the De Castro vs. Judicial and Bar Council (JBC)
evidence, or the lack of any evidence or explanation, DICIARY, ESTELITO P. MENDOZA, petitioner,
proves the accused’s guilt beyond a reasonable doubt. G.R. No. 191149. March 17, 2010.*
Until the accused’s guilt is shown in this manner, the JOHN G. PERALTA, petitioner, vs. JUDICIAL AND
presumption of innocence continues. (Re: Conviction of BAR COUNCIL (JBC), respondent.
Judge Adoracion G. Angeles, RTC, Br. 121, Caloocan PETER IRVING CORVERA;
City in Criminal Cases Nos. Q-97-69655 to 56 for Child CHRISTIAN ROBERT S. LIM;
Abuse, 543 SCRA 196 [2008]) ALFONSO V. TAN, JR.;
NATIONAL UNION OF PEOPLE’S LAWYERS;
——o0o—— MARLOU B. UBANO;
INTEGRATED BAR OF THE PHILIPPINES-DAVAO
G.R. No. 191002. March 17, 2010.* DEL SUR CHAPTER, represented by its Immediate
ARTURO M. DE CASTRO, petitioner, vs. JUDICIAL Past President, ATTY. ISRAELITO P. TORREON, and
AND BAR COUNCIL (JBC) and PRESIDENT the latter in his own personal capacity as a MEMBER
GLORIA MACAPAGAL-ARROYO, respondents. of the PHILIPPINE BAR;
G.R. No. 191032. March 17, 2010.* MITCHELL JOHN L. BOISER;
JAIME N. SORIANO, petitioner, vs. JUDICIAL AND BAGONG ALYANSANG BAYAN (BAYAN)
BAR COUNCIL (JBC), respondent. CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN
G.R. No. 191057. March 17, 2010.* SECRETARY GENERAL RENATO M. REYES, JR.;
PHILIPPINE CONSTITUTION ASSOCIATION CONFEDERATION FOR UNITY, RECOGNITION
(PHILCONSA), petitioner, vs. JUDICIAL AND BAR AND ADVANCEMENT OF GOVERNMENT
COUNCIL (JBC), respondent. EMPLOYEES (COURAGE) CHAIRMAN
A.M. No. 10-2-5-SC. March 17, 2010.* FERDINAND GAITE; KALIPUNAN NG DAMAYANG
IN RE APPLICABILITY OF SECTION 15, ARTICLE MAHIHIRAP (KADAMAY) SECRETARY GENERAL
VII OF THE CONSTITUTION TO APPOINTMENTS GLORIA ARELLANO; ALYANSA NG
TO THE JU- NAGKAKAISANG KABATAAN NG SAMBAYANAN
_______________ PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN
KEN LEONARD RAMOS; TAYO ANG PAG-ASA PHILIPPINE BAR ASSOCIATION, INC.,
CONVENOR ALVIN PETERS; LEAGUE OF petitioner, vs.JUDICIAL AND BAR COUNCIL and
FILIPINO STUDENTS (LFS) CHAIRMAN JAMES HER EXCELLENCY GLORIA MACAPAGAL-
MARK TERRY LACUANAN RIDON; NATIONAL ARROYO, respondents.
UNION OF STUDENTS OF THE PHILIPPINES Judicial Review; Locus Standi; Requisites; Words and
(NUSP) CHAIRMAN EINSTEIN RE- Phrases; In public or constitutional litigations, the Court is
668 often burdened with the determination of the locus standi of
668 SUPREME COURT REPORTS ANNOTATED the petitioners due to the ever-present need to regulate the
De Castro vs. Judicial and Bar Council (JBC) invocation of the intervention of the Court to correct any
official action or policy in order to avoid obstructing the
CEDES; COLLEGE EDITORS GUILD OF THE
efficient functioning of public officials and offices involved
PHILIPPINES (CEGP) CHAIRMAN VIJAE
in public service; Black defines locus standi as “a right of
ALQUISOLA; and STUDENT CHRISTIAN appearance in a court of justice on a given question.”—Black
MOVEMENT OF THE PHILIPPINES (SCMP) defines locus standi as “a right of appearance in a court of
CHAIRMAN MA. CRISTINA ANGELA GUEVARRA; justice on a given question.” In public or constitutional
WALDEN F. BELLO and LORETTA ANN P. litigations, the Court is often burdened with the
ROSALES; determination of the locus standi of the petitioners due to
WOMEN TRIAL LAWYERS ORGANIZATION OF the ever-present need to regulate the invocation of the
THE PHILIPPINES, represented by YOLANDA intervention of the Court to correct any official action or
QUISUMBING-JAVELLANA; BELLEZA ALOJADO policy in
669
DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA.
VOL. 615, March 17, 2010 669
VERENA KASILAG-VILLANUEVA; MARILYN STA.
De Castro vs. Judicial and Bar Council (JBC)
ROMANA; LEONILA DE JESUS; and GUINEVERE
order to avoid obstructing the efficient functioning of
DE LEON. intervenors.
public officials and offices involved in public service. It is
G.R. No. 191342. March 17, 2010.* required, therefore, that the petitioner must have a
ATTY. AMADOR Z. TOLENTINO, JR., (IBP personal stake in the outcome of the controversy, for, as
Governor–Southern Luzon), and ATTY. ROLAND B. indicated in Agan, Jr. v.Philippine International Air
INTING (IBP Governor–Eastern Visayas), Terminals Co., Inc., 402 SCRA 612 (2003): The question
petitioners, vs. JUDICIAL AND BAR COUNCIL on legal standing is whether such parties have
(JBC), respondent. “alleged such a personal stake in the outcome of the
G.R. No. 191420. March 17, 2010.* controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon nonetheless equip the petitioner with adequate interest to
which the court so largely depends for illumination sue. In David v. Macapagal-Arroyo, 489 SCRA 160 (2006)
of difficult constitutional questions.” Accordingly, it the Court aptly explains why: Case law in most
has been held that the interest of a person assailing jurisdictions now allows both “citizen” and “taxpayer”
the constitutionality of a statute must be direct and standing in public actions. The distinction was first laid
personal. He must be able to show, not only that the down in Beauchamp v.
law or any government act is invalid, but also that he 670
sustained or is in imminent danger of sustaining 6 SUPREME COURT REPORTS ANNOTATED
some direct injury as a result of its enforcement, and 70
not merely that he suffers thereby in some indefinite De Castro vs. Judicial and Bar Council (JBC)
way. It must appear that the person complaining has Silk, where it was held that the plaintiff in a
been or is about to be denied some right or privilege taxpayer’s suit is in a different category from the plaintiff in
to which he is lawfully entitled or that he is about to a citizen’s suit. In the former, the plaintiff is affected
be subjected to some burdens or penalties by reason by the expenditure of public funds, while in the
of the statute or act complained of. latter, he is but the mere instrument of the public
Same; Same; Taxpayer Suits; Quite often, the petitioner concern. As held by the New York Supreme Court
in a public action sues as a citizen or taxpayer to gain locus in People ex rel Case v. Collins: “In matter of mere public
standi, which is not surprising, for even if the issue may right, however…the people are the real parties…It is
appear to concern only the public in general, such capacities at least the right, if not the duty, of every citizen to
nonetheless equip the petitioner with adequate interest to interfere and see that a public offence be properly
sue.—The assertion of a public right as a predicate for pursued and punished, and that a public grievance
challenging a supposedly illegal or unconstitutional be remedied.” With respect to taxpayer’s suits, Terr
executive or legislative action rests on the theory that the v. Jordan held that “the right of a citizen and a
petitioner represents the public in general. Although such taxpayer to maintain an action in courts to restrain
petitioner may not be as adversely affected by the action the unlawful use of public funds to his injury cannot
complained against as are others, it is enough that he be denied.”
sufficiently demonstrates in his petition that he is entitled Same; Same; Same; The Court retains the broad
to protection or relief from the Court in the vindication of a discretion to waive the requirement of legal standing in
public right. Quite often, as here, the petitioner in a public favor of any petitioner when the matter involved has
action sues as a citizen ortaxpayer to gain locus standi. That transcendental importance, or otherwise requires a
is not surprising, for even if the issue may appear to liberalization of the requirement.—The Court rules that the
concern only the public in general, such capacities petitioners have each demonstrated adequate interest in
the outcome of the controversy as to vest them with the commenced the proceedings for the selection of the
requisite locus standi. The issues before us are of nominees to be included in a short list to be submitted to
transcendental importance to the people as a whole, and to the President for consideration of which of them will
the petitioners in particular. Indeed, the issues affect succeed Chief Justice Puno as the next Chief Justice.
everyone (including the petitioners), regardless of one’s Although the position is not yet vacant, the fact that the
personal interest in life, because they concern that great JBC began the process of nomination pursuant to its rules
doubt about the authority of the incumbent President to and practices, although it has yet to decide whether to
appoint not only the successor of the retiring incumbent submit the list of nominees to the incumbent outgoing
Chief Justice, but also others who may serve in the President or to the next President, makes the situation ripe
Judiciary, which already suffers from a far too great for judicial determination, because the next steps are the
number of vacancies in the ranks of trial judges throughout public interview of the candidates, the preparation of the
the country. In any event, the Court retains the broad short list of candidates, and the “interview of constitutional
discretion to waive the requirement of legal standing in experts, as may be needed.” A part of the question to be
favor of any petitioner when the matter involved has reviewed by the Court is whether the JBC properly
transcendental importance, or otherwise requires a initiated the process, there being an insistence from some of
liberalization of the requirement. the oppositors-intervenors that the JBC could only do so
Same; Actual Case or Controversy; Although the once the vacancy has occurred (that is, after May 17, 2010).
position is not yet vacant, the fact that the Judicial and BarAnother part is, of course, whether the JBC may resume its
Council began the process of nomination pursuant to its process until the short list is prepared, in view of the
rules and practices, although it has yet to decide whether to provision of Section 4(1), Article VIII, which unqualifiedly
submit the list of nominees to the incumbent outgoing requires the President to appoint one from the short list to
President or to the next President, makes the situation ripe fill the vacancy in the Supreme Court (be it the Chief
for judicial determination, because the next steps are the Justice or an Associate Justice) within 90 days from the
public interview of the candidates, the preparation of the occurrence of the vacancy.
short list of candidates, and the “interview of constitutional Same; Same; The Court need not await the occurrence
experts, as may be of the vacancy in the position of the Chief Justice in order for
671 the principal issue to ripe for judicial determination by the
VOL. 615, March 17, 2010 671 Court.—We need not await the occurrence of the vacancy by
De Castro vs. Judicial and Bar Council (JBC) May 17, 2010 in order for the principal issue to ripe for
needed.”—We hold that the petitions set forth an judicial determination by the Court. It is enough that one
actual case or controversy that is ripe for judicial alleges conduct arguably affected with a constitutional
determination. The reality is that the JBC already interest, but seemingly proscribed by the Constitution. A
reasonable certainty of the occurrence of the perceived Members of the Supreme Court, among others. Section 4(1)
threat to a constitutional interest is sufficient to afford a and Section 9 of this Article are the provisions specifically
basis for bringing a challenge, provided the Court has providing for the appointment of Supreme Court Justices.
sufficient facts before it to enable it to intelligently In particular, Section 9 states that the appointment of
adjudicate the issues. Herein, the facts are not in doubt, for Supreme Court Justices can only be made by the President
only legal issues remain. upon the submission of a list of at least three nominees by
Presidency; Appointments; Midnight Appointment Ban; the JBC; Section 4(1) of the Article mandates the President
The prohibition against presidential appointments under to fill the vacancy within 90 days from the occurrence of the
Section 15, Article VII does not extend to appointments in vacancy. Had the framers intended to extend the
the Judiciary.—In the consolidated petitions, the prohibition contained in Section 15, Article VII to the
petitioners, with the exception of Soriano, appointment of Members of the Supreme Court, they could
672 have explicitly done so. They could not have ignored the
6 SUPREME COURT REPORTS ANNOTATED meticulous ordering of the provisions. They would
72 have easily and surelywritten the prohibition made explicit
De Castro vs. Judicial and Bar Council (JBC) in Section 15, Article VII as being equally applicable to the
Tolentino and Inting, submit that the incumbent appointment of Members of the Supreme Court in Article
President can appoint the successor of Chief Justice Puno VIII itself, most likely in Section 4 (1), Article VIII. That
upon his retirement on May 17, 2010, on the ground that such specification was not done only reveals that the
the prohibition against presidential appointments under prohibition against the President or Acting President
Section 15, Article VII does not extend to appointments in making appointments within two months before the next
the Judiciary. The Court agrees with the submission. presidential elections and up to the end of the President’s or
Same; Same; Statutory Construction; Had the framers Acting President’s term does not refer to the Members of
intended to extend the prohibition contained in Section 15, the Supreme Court.
Article VII to the appointment of Members of the Supreme Same; Same; Same; Judgments; The reference to the
Court, they could have explicitly done so—they could not records of the Constitutional Commission did not advance or
have ignored the meticulous ordering of the provisions.—As support the result in In Re Appointments Dated March 30,
can be seen, Article VII is devoted to the Executive 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B.
Department, and, among others, it lists the powers vested Vallarta as Judges of the Regional
673
by the Constitution in the President. The presidential
power of appointment is dealt with in Sections 14, 15 and VOL. 615, March 17, 2010 673
16 of the Article. Article VIII is dedicated to the Judicial De Castro vs. Judicial and Bar Council (JBC)
Department and defines the duties and qualifications of
Trial Court of Branch 62, Bago City and of Branch 24, occurrence of the vacancy. The failure by the President to
Cabanatuan City, respectively (Valenzuela), 298 SCRA 408 do so will be a clear disobedience to the Constitution. The
(1998).—The reference to the records of the Constitutional 90-day limitation fixed in Section 4(1), Article VIII for the
Commission did not advance or support the result President to fill the vacancy in the Supreme Court was
in Valenzuela. Far to the contrary, the records disclosed the undoubtedly a special provision to establish a definite
express intent of the framers to enshrine in the mandate for the President as the appointing power, and
Constitution, upon the initiative of Commissioner Eulogio cannot be defeated by mere judicial interpretation
Lerum, “a command [to the President] to fill up any vacancy inValenzuela to the effect that Section 15, Article VII
therein within 90 days from its occurrence,” which prevailed because it was “couched in stronger negative
evenValenzuela conceded. The exchanges during language.” Such interpretation even turned out to be
deliberations of the Constitutional Commission on October conjectural, in light of the records of the Constitutional
8, 1986 further show that the filling of a vacancy in the Commission’s deliberations on Section 4 (1), Article VIII.
Supreme Court within the 90-day period was Same; Same; Same; Same; Valenzuela arbitrarily
a true mandate for the President. ignored the express intent of the Constitutional Commission
Same; Same; Same; Same; The usage in Section 4(1), to have Section 4 (1), Article VIII stand independently of any
Article VIII of the Constitution of the word shall—an other provision, least of all
imperative, operating to impose a duty that may be 674
enforced—should not be disregarded; Section 4(1) imposes 6 SUPREME COURT REPORTS ANNOTATED
on the President the imperative duty to make an 74
appointment of a Member of the Supreme Court within 90 De Castro vs. Judicial and Bar Council (JBC)
days from the occurrence of the vacancy—the failure by the one found in Article VII—a misinterpretation like
President to do so will be a clear disobedience to the Valenzuela should not be allowed to last after its false
Constitution; The 90-day limitation fixed in Section 4(1), premises have been exposed; Valenzuela now deserves to be
Article VIII for the President to fill the vacancy in the quickly sent to the dustbin of the unworthy and
Supreme Court was undoubtedly a special provision to forgettable.—In this connection, PHILCONSA’s urging of a
establish a definite mandate for the President as the revisit and a review of Valenzuela is timely and
appointing power.—Moreover, the usage in Section 4(1), appropriate. Valenzuela arbitrarily ignored the express
Article VIII of the word shall—an imperative, operating to intent of the Constitutional Commission to have Section 4
impose a duty that may be enforced—should not be (1), Article VIII stand independently of any other provision,
disregarded. Thereby, Sections 4(1) imposes on the least of all one found in Article VII. It further ignored that
President theimperative duty to make an appointment of a the two provisions had no irreconcilable conflict, regardless
Member of the Supreme Court within 90 days from the of Section 15, Article VII being couched in the negative. As
judges, we are not to unduly interpret, and should not establishment of the JBC and their subjecting the
accept an interpretation that defeats the intent of the nomination and screening of candidates for judicial
framers. Consequently, prohibiting the incumbent positions to the unhurried and deliberateprior process of
President from appointing a Chief Justice on the premise the JBC ensured that there would no longer be mid-
that Section 15, Article VII extends to appointments in the 675
Judiciary cannot be sustained. A misinterpretation VOL. 615, March 17, 2010 675
likeValenzuela should not be allowed to last after its false De Castro vs. Judicial and Bar Council (JBC)
premises have been exposed. It will not do to merely night appointments to the Judiciary. If midnight
distinguish Valenzuelafrom these cases, for the result to be appointments in the mold of Aytona were made in haste
reached herein is entirely incompatible with and with irregularities, or made by an outgoing Chief
what Valenzuela decreed. Consequently, Executive in the last days of his administration out of a
Valenzuela now deserves to be quickly sent to the dustbin of desire to subvert the policies of the incoming President or
the unworthy and forgettable. We reverse Valenzuela. for partisanship, the appointments to the Judiciary made
Same; Same; Same; Judicial and Bar Council; Given after the establishment of the JBC would not be suffering
the background and rationale for the prohibition in Section from such defects because of the JBC’s prior processing of
15, Article VII, the Court has no doubt that the candidates. Indeed, it is axiomatic in statutory construction
Constitutional Commission confined the prohibition to that the ascertainment of the purpose of the enactment is a
appointments made in the Executive Department; If step in the process of ascertaining the intent or meaning of
midnight appointments in the mold of Aytona v. Castillo, 4 the enactment, because the reason for the enactment must
SCRA 1 (1962), were made in haste and with irregularities, necessarily shed considerable light on “the law of the
or made by an outgoing Chief Executive in the last days of statute,” i.e., the intent; hence, the enactment should be
his administration out of a desire to subvert the policies of construed with reference to its intended scope and purpose,
the incoming President or for partisanship, the and the court should seek to carry out this purpose rather
appointments to the Judiciary made after the establishment than to defeat it.
of the Judicial and Bar Council (JBC) would not be Same; Same; Same; Same; The intervention of the
suffering from such defects because of the JBC’s prior Judicial and Bar Council (JBC) eliminates the danger that
processing of candidates.—Given the background and appointments to the Judiciary can be made for the purpose
rationale for the prohibition in Section 15, Article VII, we of buying votes in a coming presidential election, or of
have no doubt that the Constitutional Commission confined satisfying partisan considerations.—The intervention of the
the prohibition to appointments made in the Executive JBC eliminates the danger that appointments to the
Department. The framers did not need to extend the Judiciary can be made for the purpose of buying votes in a
prohibition to appointments in the Judiciary, because their coming presidential election, or of satisfying partisan
considerations. The experience from the time of the nominations for the eight vacancies in the Court of Appeals.
establishment of the JBC shows that even candidates for The fault of Valenzuela was that it accorded no weight and
judicial positions at any level backed by people influential due consideration to the confirmation of Justice
with the President could not always be assured of being Regalado.Valenzuela was weak, because it relied on
recommended for the consideration of the President, interpretation to determine the intent of the framers rather
because they first had to undergo the vetting of the JBC than on the deliberations of the Constitutional Commission.
and pass muster there. Indeed, the creation of the JBC Much of the unfounded doubt about the President’s power
was precisely intended to de-politicize the Judiciary by to appoint during the period of prohibition in Section 15,
doing away with the intervention of the Commission on Article VII could have been dispelled since its promulgation
Appointments. This insulating process was absent from on November 9, 1998, hadValenzuela properly
theAytona midnight appointment. acknowledged and relied on the confirmation of a
Same; Same; Same; The fault of Valenzuela was that it distinguished member of the Constitutional Commission
accorded no weight and due consideration to like Justice Regalado.
the confirmation of Justice Regalado—Valenzuela was Same; Same; Same; To hold like the Court did in
weak, because it relied on interpretation to determine the Valenzuela that Section 15 extends to appointments to the
intent of the framers rather than on the deliberations of the Judiciary further undermines the intent of the Constitution
Constitutional Commission.—As earlier stated, the non- of ensuring the independence of the Judicial Department
applicability of Section 15, Article VII to appointments in from the Executive and Legislative Departments.—To hold
the Judiciary was confirmed by then Senior Associate like the Court did inValenzuela that Section 15 extends to
Justice Regalado to the JBC itself when it met on March 9, appointments to the Judiciary further undermines the
1998 to discuss the question raised by some sectors about intent of the Constitution of ensuring the independence of
the “constitutionality of xxx appointments” to the Court of the Judicial Department from the Executive and Legislative
Appeals in light of the forthcoming presiden- Departments. Such a holding will tie the Judiciary and the
676 Supreme Court to the fortunes or misfortunes of political
6 SUPREME COURT REPORTS ANNOTATED leaders vying for the Presidency in a presidential election.
76 Consequently, the wisdom of having the new President,
De Castro vs. Judicial and Bar Council (JBC) instead of the current incumbent President, appoint the
tial elections. He assured that “on the basis of the next Chief Justice is itself suspect, and cannot ensure
(Constitutional) Commission’s records, the election ban had judicial independence, because the appointee can also
no application to appointments to the Court of Appeals.” become beholden to the appointing authority. In contrast,
This confirmation wasaccepted by the JBC, which then the appointment by the incumbent President does not run
submitted to the President for consideration the
the same risk of compromising judicial independence, that the President can appoint the Chief Justice from
precisely because her term will end by June 30, 2010. among the sitting justices of the Court even without a JBC
Same; Same; Same; In an extreme case, the Court can list.
even raise a doubt on whether a Judicial and Bar Council Same; Same; Same; Supreme Court; Judiciary Act of
(JBC) list is necessary at all for the President—any 1948; Legal Research; The express reference in Sections 4(1)
President—to appoint a Chief Justice if the appointee is to and 9 of Article VIII of the Constitution to a Chief Justice
come from the ranks of the sitting justices of the Supreme abhors the idea that the framers contemplated an Acting
Court.—As a matter of fact, in an extreme case, we can even Chief Justice to head the membership of the Supreme
raise a doubt on whether a JBC list is necessary at all for Court—otherwise, they would have simply written so in the
the President—any President—to appoint a Chief Justice if Constitution; The framers intended the position of Chief
the Justice to be permanent, not one to be occupied in an acting
677 or temporary capacity; It ought to be remembered that
VOL. 615, March 17, 2010 677 Section 12 of the Judiciary Act of 1948 was enacted because
De Castro vs. Judicial and Bar Council (JBC) the Chief Justice appointed under the 1935 Constitution was
appointee is to come from the ranks of the sitting subject to the confirmation of the Commission on
justices of the Supreme Court. Sec. 9, Article VIII says: xxx. Appointments, and the confirmation process might take
The Members of the Supreme Court xxx shall be appointed longer than expected.—A review of Sections 4(1) and 9 of
by the President from a list of at least three nominees Article VIII shows that the Supreme Court is composed of a
prepared by the Judicial and Bar Council for any vacancy. Chief Justice and 14 Associate Justices, who all shall be
Such appointments need no confirmation. xxx The provision appointed by the President from a list of at least three
clearly refers to an appointee coming into the Supreme nominees prepared by the JBC for every vacancy, which
Court from the outside, that is, a non-member of the Court appointments require no confirmation by the Commission
aspiring to become one. It speaks of candidates for the on Appointments. With reference to the Chief Justice, he or
Supreme Court, not of those who are already members or she is appointed by the President as Chief Justice, and the
sitting justices of the Court, all of whom have previously appointment is never in an acting capacity. The express
been vetted by the JBC. Can the President, therefore, reference to a Chief Justice abhors the idea that the
appoint any of the incumbent Justices of the Court as Chief framers contemplated an ActingChief Justice to head the
Justice? The question is not squarely before us at the membership of the Supreme Court. Otherwise, they would
moment, but it should lend itself to a deeper analysis if and have simply written so in the Constitution.
when circumstances permit. It should be a good issue for 678
the proposed Constitutional Convention to consider in the 6 SUPREME COURT REPORTS ANNOTATED
light of Senate President Juan Ponce Enrile’s statement 78
De Castro vs. Judicial and Bar Council (JBC) Court being the Presidential Electoral Tribunal, the Chief
Consequently, to rely on Section 12 of the Judiciary Act Justice is the Chairman of the Tribunal. There being no
of 1948 in order to forestall the imperative need to appoint obstacle to the appointment of the next Chief Justice, aside
the next Chief Justice soonest is to defy the plain intent of from its being mandatory for the incumbent President to
the Constitution. For sure, the framers intended the make within the 90-day period from May 17, 2010, there is
position of Chief Justice to be permanent, not one to be no justification to insist that the successor of Chief Justice
occupied in an acting or temporary capacity. In relation to Puno be appointed by the next President.
the scheme of things under the present Constitution, Mandamus; Requisites.—Mandamus shall issue when
Section 12 of the Judiciary Act of 1948 only responds to a any tribunal, corporation, board, officer or person
rare situation in which the new Chief Justice is not yet unlawfully neglects the performance of an act that the law
appointed, or in which the incumbent Chief Justice is specifically enjoins as a duty resulting from an office, trust,
unable to perform the duties and powers of the office. It or station. It is proper when the act against which it is
ought to be remembered, however, that it was enacted directed is one addressed to the discretion of the tribunal or
because the Chief Justice appointed under the 1935 officer. Mandamus is not available to direct the exercise of a
Constitution was subject to the confirmation of the judgment or discretion in a particular way.
Commission on Appointments, and the confirmation process For mandamus to
might take longer than expected. 679
Same; Same; Same; Same; The lack of any appointed VOL. 615, March 17, 2010 679
occupant of the office of Chief Justice harms the De Castro vs. Judicial and Bar Council (JBC)
independence of the Judiciary, because the Chief Justice is lie, the following requisites must be complied with: (a)
the head of the entire Judiciary.—The appointment of the the plaintiff has a clear legal right to the act demanded; (b)
next Chief Justice by the incumbent President is preferable it must be the duty of the defendant to perform the act,
to having the Associate Justice who is first in precedence because it is mandated by law; (c) the defendant unlawfully
take over. Under the Constitution, the heads of the neglects the performance of the duty enjoined by law; (d)
Legislative and Executive Departments are popularly the act to be performed is ministerial, not discretionary;
elected, and whoever are elected and proclaimed at once and (e) there is no appeal or any other plain, speedy and
become the leaders of their respective Departments. adequate remedy in the ordinary course of law.
However, the lack of any appointed occupant of the office of Same; Presidency; Appointments; Judicial and Bar
Chief Justice harms the independence of the Judiciary, Council; The Judicial and Bar Council (JBC) has no
because the Chief Justice is the head of the entire discretion to submit the list of nominees to fill a vacancy in
Judiciary. The Chief Justice performs functions absolutely the Supreme Court to the President after the vacancy occurs,
significant to the life of the nation. With the entire Supreme because that shortens the 90-day period allowed by the
Constitution for the President to make the appointment.— within the discretion of the JBC. The object of the petitions
Section 4(1) and Section 9, Article VIII, mandate the for mandamusherein should only refer to the
President to fill the vacancy in the Supreme Court within 680
90 days from the occurrence of the vacancy, and within 90 6 SUPREME COURT REPORTS ANNOTATED
days from the submission of the list, in the case of the lower 80
courts. The 90-day period is directed at the President, not De Castro vs. Judicial and Bar Council (JBC)
at the JBC. Thus, the JBC should start the process of duty to submit to the President the list of nominees for
selecting the candidates to fill the vacancy in the Supreme every vacancy in the Judiciary, because in order to
Court before the occurrence of the vacancy. Under the constitute unlawful neglect of duty, there must be an
Constitution, it is mandatory for the JBC to submit to the unjustified delay in performing that duty.
President the list of nominees to fill a vacancy in the For mandamus to lie against the JBC, therefore, there
Supreme Court in order to enable the President to appoint should be an unexplained delay on its part in
one of them within the 90-day period from the occurrence of recommending nominees to the Judiciary, that is, in
the vacancy. The JBC has no discretion to submit the list to submitting the list to the President.
the President after the vacancy occurs, because that Words and Phrases; “Ministerial Act” and
shortens the 90-day period allowed by the Constitution for “Discretionary Act,” Distinguished.—The distinction
the President to make the appointment. For the JBC to do between a ministerial act and a discretionary one has been
so will be unconscionable on its part, considering that it will delineated in the following manner: The distinction between
therebyeffectively and illegally deprive the President of the a ministerial and discretionary act is well delineated.
ample time granted under the Constitution to reflect on the A purely ministerial act or duty is one which an
qualifications of the nominees named in the list of the JBC officer or tribunal performs in a given state of facts,
before making the appointment. in a prescribed manner, in obedience to the mandate
Same; Same; Same; Same; The duty of the Judicial and of a legal authority, without regard to or the exercise
Bar Council (JBC) to submit a list of nominees before the of his own judgment upon the propriety or
start of the President’s mandatory 90-day period to impropriety of the act done. If the law imposes a duty
appoint is ministerial, but its selection of the candidates upon a public officer and gives him the right to
whose names will be in the list to be submitted to the decide how or when the duty shall be performed,
President lies within the discretion of the JBC.—The duty of such duty is discretionary and not ministerial. The duty
the JBC to submit a list of nominees before the start of the is ministerial only when the discharge of the same
President’s mandatory 90-day period to appoint is requires neither the exercise of official discretion or
ministerial, but its selection of the candidates whose names judgment.
will be in the list to be submitted to the President lies CARPIO-MORALES, J., Dissenting Opinion:
Supreme Court; Words and Phrases; Primus Inter manifest their vision” of the charter’s contents. It is
Pares; The Latin maxim primus inter pares indicates that a unfortunate that the ponencia chiefly relies on the
person is the most senior of a group of people sharing trivialities of draftsmanship style in arriving at a
the same rank or office.—Primus Inter Pares. First among constitutional construction.
equals. The Latin maxim indicates that a person is the most Same; Same; Same; Same; Judicial and Bar Council;
senior of a group of people sharing the same rank or office. Checks and Balances; That the power of judicial
The phrase has been used to describe the status, condition appointment was lodged in the President is a recognized
or role of the prime minister in most parliamentary nations, measure of limitation on the power of the judiciary, which
the high-ranking prelate in several religious orders, and the measure, however, is counterbalanced by the election ban
chief justice in many supreme courts around the world. The due to the need to insulate the judiciary from the
inclination to focus on the inter pareswithout due emphasis political climate of presidential elections—to abandon this
on the primus/prima has spawned contemporary discourse interplay of checks and balances on the mere inference that
that revives the original tug-of-war between domination the establishment of the JBC could de-politicize the process
and parity, which impasse the conceived maxim precisely of judicial appointments lacks constitutional mooring.—The
intended to resolve. In the present case, several arguments allocation of three Articles in the Constitution devoted to
attempt to depict a mirage of doomsday scenarios arising the respective dynamics of the three Departments was
from the impending vacancy of the primus in the Court as a deliberately adopted by the framers to allocate the vast
springboard for their plea to avert a supposed undermining powers of government among the three Departments in
of the independence of the judiciary. In reality, recognition of the principle of separation of powers. The
the essential question boils down to the limitation on equation, however, does not end there. Such kind of
the appointing power of the President.681 formulation detaches itself from the concomitant system of
VOL. 615, March 17, 2010 681 checks and balances. Section sequencing alone of Sections
De Castro vs. Judicial and Bar Council (JBC) 14, 15 and 16 of Article VII, as explained in the fourth
ratiocination, does not suffice to signify functional
Presidency; Appointments; Midnight Appointment Ban; structuring. That the power of judicial appointment was
Statutory Construction; It is unfortunate that the ponencia lodged in the President is a recognized measure of
chiefly relies on the trivialities of draftsmanship style in limitation on the power of the judiciary, which measure,
arriving at a constitutional construction.—The first however, is counterbalanced by the election ban due to the
ratiocination adverts to the “organization and need to insulate the judiciary from the political climate of
arrangement of the provisions of the Constitution” that presidential elections. To abandon this interplay of checks
was, as the ponencia declares, purposely made by the and balances on the mere inference that the establishment
framers of the Constitution to “reflect their intention and
of the JBC could de-politicize the process of judicial executive positions, and not to vacancies in the judiciary and
appointments lacks constitutional mooring. independent constitutional bodies, is to make the prohibition
Same; Same; Same; Same; The constitutional practically useless.—It is simplistic and unreliable for
prohibition in Section 15 found its roots in the case of the ponencia to contend that had the framers intended to
Aytona v. Castillo, 4 SCRA 1 (1962), where among the extend the ban in Article VII to appointments in the
“midnight” or “last minute” appointments voided to abort judiciary, they would have easily and surely written so in
the abuse of presidential prerogatives or partisan efforts to Article VIII, for it backlashes the question that had the
fill vacant positions were one in the Supreme Court and two framers intended to exclude judicial appointments in
682 Article VIII from the prohibition in Article VII, they would
6 SUPREME COURT REPORTS ANNOTATED have easily and surely written so in the excepting proviso in
82 Article VII. Taking into account how the framers
De Castro vs. Judicial and Bar Council (JBC) painstakingly rummaged through various sections of the
in the Court of Appeals.—The constitutional Constitution and came up with only one exception with the
prohibition in Section 15 found its roots in the case need to specify the executive department, it insults the
of Aytona v. Castillo,4 SCRA 1 (1962) where among the collective intelligence and diligence of the ConCom to
“midnight” or “last minute” appointments voided to abort postulate that it intended to exclude the judiciary but
the abuse of presidential prerogatives or partisan efforts to missed out on that one. To hold that the ban on midnight
fill vacant positions were one in the Supreme Court and two appointments applies only to executive positions, and not to
in the Court of Appeals. HeedingAytona’s admonition, the vacancies in the judiciary and independent constitutional
Constitutional Commission (ConCom) saw it fit to provide bodies, is to make the prohibition practically useless. It
for a comprehensive ban on midnight appointments, finding bears noting that Section 15, Article VII of the Constitution
that the establishment of the JBC is not enough to already allows the President, by way of exception, to make
safeguard or insulate judicial appointments from temporary appointments in the Executive Department
politicization. during the prohibited period. Under this view, there is
Same; Same; Same; Same; Taking into account how the virtually no restriction on the President’s power of
framers painstakingly rummaged through various sections appointment during the prohibited period. The general rule
of the Constitution and came up with only one exception is clear since the prohibition applies to ALL kinds of
with the need to specify the executive department, it insults midnight appointments.
683
the collective intelligence and diligence of the Constitutional
Commission (ConCom) to postulate that it intended to VOL. 615, March 17, 2010 683
exclude the judiciary but missed out on that one; To hold De Castro vs. Judicial and Bar Council (JBC)
that the ban on midnight appointments applies only to
The Constitution made no distinction. Ubi lex non Member, to the exception of the opinion of all others
distinguit nec nos distinguere debemos. similarly situated. It bears noting that the Court had
Same; Same; Same; Same; Expressio Unius; There is no spoken in one voice in Valenzuela. Theponencia should not
clear circumstance that would indicate that the enumeration hastily reverse, on the sole basis of Justice Regalado’s
in the exception in Section 15, Article VII of the Constitution opinion, the Court’s unanimous en banc decision penned by
was not intended to be exclusive.—The exception is likewise Chief Justice Andres Narvasa, and concurred in by,inter
clear.Expressio unius et exclusio alterius. The express alia, Associate Justices who later became Chief Justices—
mention of one person, thing or consequence implies the Hilario Davide, Jr., Artemio Panganiban and Reynato
exclusion of all others. There is no clear circumstance that Puno. The line of reasoning is specious. If that is the case
would indicate that the enumeration in the exception was and for accuracy’s sake, we might as well reconvene all
not intended to be exclusive. Moreover, the fact that Section ConCom members and put the matter to a vote among
15 was couched in negative language reinforces the them.684
exclusivity of the exception. Under the rules of statutory 6 SUPREME COURT REPORTS ANNOTATED
construction, exceptions, as a general rule, should be 84
strictly but reasonably construed; they extend only so far as De Castro vs. Judicial and Bar Council (JBC)
their language fairly warrants, and all doubts should be
resolved in favor of the general provisions rather than the Same; Same; Same; Same; Casus Omissus; The proper
exception. Where a general rule is established by statute interpretation therefore of a Constitution depends more on
with exceptions, the court will not curtail the former nor how it was understood by the people adopting it than in the
add to the latter by implication. framers’ understanding thereof; The people may not be of the
Same; Same; Same; Same; Judgments; The ponencia same caliber as Justice Regalado, but they simply could not
should not hastily reverse, on the sole basis of Justice read into Section 15 something that is not there—casus
Regalado’s opinion, the Court’s unanimous en banc decision omissus pro omisso habendus est.—
In Re Appointments of Hon. Valenzuela & Hon. Vallarta, Providentially, jurisprudence is replete with guiding
298 SCRA 408 (1998), penned by Chief Justice Andres principles to ascertain the true meaning of the
Narvasa, and concurred in by, inter alia, Associate Justices Constitution when the provisions as written appear
who later became Chief Justices—Hilario Davide, Jr., unclear and the proceedings as recorded provide
Artemio Panganiban and Reynato Puno.—In itsthird little help: While it is permissible in this jurisdiction to
ratiocination, the ponencia faults Valenzuela for not consult the debates and proceedings of the constitutional
according weight and due consideration to the opinion of convention in order to arrive at the reason and purpose of
Justice Florenz Regalado. It accords high regard to the the resulting Constitution, resort thereto may be had only
opinion expressed by Justice Regalado as a former ConCom when other guides fail as said proceedings are powerless to
vary the terms of the Constitution when the meaning is De Castro vs. Judicial and Bar Council (JBC)
clear. Debates in the constitutional convention “are of value rendering the lapse of the 90-day period within the
as showing the views of the individual members, and as period of the ban, in which case the remaining period
indicating the reasons for their votes, but they give us no should resume to run at noon of June 30. The outgoing
light as to the views of the large majority who did not talk, President would be released from non-fulfillment of the
much less of the mass of our fellow citizens whose votes at constitutional obligation, and the duty devolves upon the
the polls gave that instrument the force of fundamental new President. Considering also that Section 15 of Article
law. We think it safer to construe the constitution from VII is an express limitation on the President’s power of
what appears upon its face.” The proper interpretation appointment, the running of the 90-day period is
therefore depends more on how it was understood by the deemedsuspended during the period of the ban which
people adopting it than in the framers’ understanding takes effect only once every six years.
thereof. (underscoring supplied) The clear import of Section Same; Same; Judicial and Bar Council; The ponencia’s
15 of Article VII is readily apparent. The people may not be interpretation that the Judicial and Bar Council (JBC) has
of the same caliber as Justice Regalado, but they simply until 17 May 2010, at the latest, within which to submit to
could not read into Section 15 something that is not the President the list of nominees for the position of Chief
there.Casus omissus pro omisso habendus est. Justice is absurd as it takes the application and nomination
Same; Same; Same; Considering that Section 15 of stages in isolation from the whole appointment process—for
Article VII is an express limitation on the President’s power the ponencia, the filling of the vacancy only involves the
of appointment, the running of the 90-day period is deemed President, and the JBC was not considered when the period
suspended during the period of the ban which takes effect was increased from 60 days to 90 days.—The ponencia also
only once every six years.—In the present case, there can holds that the JBC has until May 17, 2010, at the latest,
only arise a legal impossibility when the JBC list is within which to submit to the President the list of nominees
submitted or the vacancy occurred during the appointments for the position of Chief Justice. It declares that the JBC
ban and the 90-day period would expire before the end of should start the process of selecting the candidates to fill
the appointments ban, in which case the fresh 90-day the vacancy in the Supreme Court before the occurrence of
period should start to run at noon of June 30. This was the the vacancy, explaining that the 90-day period in the
factual antecedent respecting the trial court judges involved proviso, “Any vacancy shall be filled within ninety days
inValenzuela. There also arises a legal impossibility when from the occurrence thereof,” is addressed to the President,
the list is submitted or the vacancy occurred prior to the not to the JBC. Such interpretation is absurd as it takes the
ban and no appointment was made before the ban starts, application and nomination stages in isolation from the
685 whole appointment process. For the ponencia, the filling of
VOL. 615, March 17, 2010 685 the vacancy only involves the President, and the JBC was
not considered when the period was increased from 60 days period of vacancy rebuts any policy argument on the
to 90 days. The sense of the Concom is the exact opposite. necessity to avoid a vacuum of even a single day in the
The flaw in the reasoning is made more evident when the position of an appointed Chief Justice.
vacancy occurs by virtue of death of a member of the Court. ame; Same; Same; As a member of the Court, I strongly
In that instance, the JBC could never anticipate the take exception to the ponencia’s implication that the Court
vacancy, and could never submit a list to the President cannot function without a sitting Chief Justice.—As a
before the 90-day period. member of the Court, I strongly take exception to
Same; Same; Supreme Court; It is ironic for the the ponencia’simplication that the Court cannot
ponencia to recognize that the President may need as much function without a sitting Chief Justice. To begin with,
as 90 days of reflection in appointing a member of the Court, judicial power is vested in one Supreme Court and not in its
and yet abhor the idea of an acting Chief Justice in the individual members, much less in the Chief Justice alone.
interregnum as provided for by law, confirmed by tradition, Notably, after Chief Justice Puno retires, the Court will
and settled by jurisprudence to be an internal matter—the have 14 members left, which is more than sufficient to
express allowance of a 90-day period of vacancy rebuts any constitute a quorum. The fundamental principle in the
policy argument on the necessity to avoid a vacuum of even a system of laws recognizes that there is only one Supreme
single day in the position of an appointed Chief Justice.—It Court from whose decisions all other courts are required to
is ironic take their bearings. While most of the Court’s work is
686 performed by its three divisions, the Court remains one
6 SUPREME COURT REPORTS ANNOTATED court—single, unitary, complete and supreme. Flowing from
86 this is the fact that, while individual justices may dissent or
De Castro vs. Judicial and Bar Council (JBC) only partially concur, when the Court states what the law
for the ponencia to state on the one hand that the is, it speaks with only one voice. The Court, as a collegial
President would be deprived of ample time to reflect on the body, operates on a “one member, one vote” basis, whether
qualifications of the nominees, and to show on the other it sits en banc or in divisions. The competence, probity and
hand that the President has, in recent history, filled the independence of the Court en banc, or those of the Court’s
vacancy in the position of Chief Justice in one or two days. Division to which the Chief Justice belongs, have never
It is ironic for the ponencia to recognize that the President depended on whether the member voting as Chief Justice is
may need as much as 90 days of reflection in appointing a merely an acting Chief Justice or a duly appointed one.
member of the Court, and yet abhor the idea of an acting NACHURA, J., Separate Opinion:
Chief Justice in the interregnum as provided for by law, Judicial Review; The consolidated petitions should be
confirmed by tradition, and settled by jurisprudence to be dismissed, because they do not raise an actual case or
an internal matter. The express allowance of a 90-day controversy ripe for judicial determination.—After careful
perusal of the pleadings and painstaking study of the determination of the controversy will result in practical
applicable law and jurisprudence, I relief to the complainant.
687 Same; Declaratory Relief; Jurisdiction; Supreme Court;
VOL. 615, March 17, 2010 687 Settled is the rule that petitions for declaratory relief are
De Castro vs. Judicial and Bar Council (JBC) outside the jurisdiction of this Court.—As to the petition
earnestly believe that the consolidated petitions should filed by Estelito Mendoza, while it is captioned as an
be dismissed, because they do not raise an actual case administrative matter, the same is in the nature of a
or controversy ripe for judicial determination. As an petition for declaratory relief. Mendoza pleads that this
essential ingredient for the exercise of the power of judicial Court interpret two apparently conflicting provisions of the
review, anactual case or controversy involves a conflict Constitution—Article VII, Section 15 and Article VIII,
of legal rights, an assertion of opposite legal claims Section 4(1). Petitioner Mendoza specifically prays for such
susceptible to judicial resolution. The controversy must a ruling “for the guidance of the [JBC],” a relief
be justiciable—definite and concrete—touching on the evidently in the nature of a declaratory judgment. Settled is
legal relations of parties having adverse legal interests. In the rule that petitions for declaratory relief are outside the
other words, the pleadings must show an active jurisdiction of this Court. Moreover, the Court does not
antagonistic assertion of a legal right, on one hand, and a sit to adjudicate mere academic questions to satisfy
denial thereof, on the other; that is, the case must concern a scholarly interest, however intellectually
real and not a merely theoretical question or issue. There challenging. While Mendoza and the other petitioners
ought to be an actual and substantial controversy admitting espouse worthy causes, they have presented before this
of specific relief through a decree conclusive in nature, as Court issues which are still subject tounfore-
distinguished from an opinion advising what the law would 688
be upon a hypothetical state of facts. The rationale for this 6 SUPREME COURT REPORTS ANNOTATED
requirement is to prevent the courts through avoidance of 88
premature adjudication from entangling themselves in De Castro vs. Judicial and Bar Council (JBC)
abstract disagreements, and for us to be satisfied that the seen possibilities. In other words, the issues they
case does not present a hypothetical injury or a claim raised arehypothetical and unripe for judicial
contingent upon some event that has not and indeed may determination.
never transpire. Thus, justiciability requires (1) that Same; Same; Advisory Opinions; The function of the
there be an actual controversy between or among the courts is to determine controversies between litigants and
parties to the dispute; (2) that the interests of the parties be not to give advisory opinions.—To repeat for emphasis,
adverse; (3) that the matter in controversy be capable of before this Court steps in to wield its awesome power of
being adjudicated by judicial power; and (4) that the deciding cases, there must first be an actual controversy
ripe for judicial adjudication. Here, the allegations in overburden their dockets, and ultimately render themselves
all the petitions are conjectural or anticipatory. No actual ineffective dispensers of justice. To be sure, this is an evil
controversy between real litigants exists. These that clearly confronts our judiciary today.689
consolidated petitions, in other words, are a “purely VOL. 615, March 17, 2010 689
academic exercise.” Hence, any resolution that this Court De Castro vs. Judicial and Bar Council (JBC)
might make would constitute an attempt at abstraction
that can only lead to barren legal dialectics and sterile BRION, J., Separate Opinion:
conclusions unrelated to actualities. Moreover, the function Judicial Review; Locus Standi; Jurisprudence is replete
of the courts is to determine controversies between litigants with precedents on the liberal appreciation of the locus
and not to give advisory opinions. Here, petitioners are standi rule on issues that are of transcendental concern to
asking this Court to render an advisory opinion on what the the nation, and the petitioners very well qualify under these
JBC and the President should do. To accede to it is rulings.—I completely agree with the ponencia’s ruling on
tantamount to an incursion into the functions of the the parties’ standing, theirlocus standi, to bring their
executive department. This will further inappropriately petitions and interventions in their capacities as citizens
make the Court an adviser of the President. and lawyers who stand to be affected by our ruling as
Same; Same; Same; If petitioners only want guidance lawyers or by the impact of our ruling on the nation and the
from this Court, then, let it be stated that enough guidance all-important electoral exercise we shall hold in May 2010.
is already provided by the Constitution, the relevant laws, Jurisprudence is replete with precedents on the liberal
and the prevailing jurisprudence on the matter—the Court appreciation of the locus standi rule on issues that are of
must not be unduly burdened with petitions raising transcendental concern to the nation, and the petitioners
abstract, hypothetical, or contingent questions.—A final very well qualify under these rulings. In this sense, locus
note. If petitioners only want guidance from this Court, standi is not a critical issue in the present case. In fact, the
then, let it be stated that enough guidance is already concern voiced out during the Court’s deliberations, is more
provided by the Constitution, the relevant laws, and the on how participation can be limited to those who have
prevailing jurisprudence on the matter. The Court must substantial contributions, through their submissions, to the
not be unduly burdened with petitions raising resolution of the grave issues before the Court.
abstract, hypothetical, or contingent questions. As Same; Same; I disagree with the ponencia’s ruling on
fittingly phrased by Chief Justice Puno in Lozano—Given justiciability as I believe some of the petitions before us do
the sparseness of our resources, the capacity of courts to not reach the required level of justiciability; others, however,
render efficient judicial service to our people is severely qualify so that my disagreement with the lack of
limited. For courts to indiscriminately open their doors to justiciability of some of the petitions need not hinder the
all types of suits and suitors is for them to unduly Court’s consideration of the main issue at hand.—While the
rule on locus standi can be relaxed, the rule on the need for relevant in this case since the Judicial and Bar Council
an actual justiciable case that is ripe for adjudication (JBC) was created “under the supervision of the Supreme
addresses a different concern and cannot be similarly Court,” with the “principal function of recommending
treated. I disagree with the ponencia’s ruling on appointees to the Judiciary.”—This aspect of the power of
justiciability as I believe some of the petitions before the Court—its power of supervision—is particularly
us do not reach the required level of justiciability; relevant in this case since the JBC was created “under the
others, however, qualify as discussed below so that supervision of the Supreme Court,” with the “principal
my disagreement with the lack of justiciability of function of recommending appointees to the Judiciary.” In
some of the petitions need not hinder the Court’s the same manner that the Court cannot dictate on the lower
consideration of the main issue at hand. The basic courts on how they should decide cases except through the
requisite before this Court can rule is the presence of an appeal and review process provided by the Rules of Court,
actual case calling for the exercise of judicial power. This is so also cannot the Court intervene in the JBC’s authority to
a requirement that the Constitution itself expressly discharge its principal function. In this sense, the JBC is
imposes; in granting the Court judicial power and in fully independent as shown by A.M. No. 03-11-16-SC
defining the grant, the Constitution expressly states that or Resolution Strengthening The Role and Capacity of the
judicial power includes the duty to Judicial and Bar Council and Establishing the Offices
settle actual controversies involving rights which are Therein. In both cases, however and unless otherwise
legally demandable and enforceable. Thus, the Court does defined by the Court (as in A.M. No. 03-11-16-SC), the
not issue advisory opinions, nor do we pass upon hypo- Court can supervise by ensuring the legality and
690 correctness of these entities’ exercise of their powers as to
6 SUPREME COURT REPORTS ANNOTATED means and manner, and interpreting for them the
90 constitutional provisions, laws and regulations affecting the
De Castro vs. Judicial and Bar Council (JBC) means and manner of the exercise of their powers as the
thetical cases, feigned problems or friendly suits Supreme Court is the final authority on the interpretation
collusively arranged between parties without real adverse of these instruments. A prime example of the exercise of the
interests. Courts cannot adjudicate mere academic Court’s power of supervision is In Re: Appointments dated
questions to satisfy scholarly interest, however March 30, 1998 of Hon. Mateo A. Valenzuela and Hon.
intellectually challenging they may be. As a condition Placido B. Vallarta as Judges of the Regional Trial Court of
precedent to the exercise of judicial power, an actual Branch 62, Bago City, and of Branch 24, Cabanatuan City,
controversy between litigants must first exist. respectively, A.M. No. 98-5-01-SC, November 9, 1998
Supreme Court; Judicial and Bar Council; The (hereinafter referred to as Valenzuela) where the Court
Supreme Court’s power of supervision is particularly nullified the oath of office taken by Judge Valenzuela, while
at the same time giving its interpretation of how the on the Supreme Court’s power of supervision: under Section
election ban against appointment operates on the Judiciary, 6, Article VIII, this refers to administrative supervision
thereby setting the guidelines on how Section 15, Article over all courts and the personnel thereof; under Section 8, it
VII is to be read and interpreted. The Valenzuela case shall refers to its supervision over the JBC. In using an
be discussed more fully below.691 administrative matter as its medium, the Mendoza petition
VOL. 615, March 17, 2010 691 cites as basis the effect of a complete election ban on
De Castro vs. Judicial and Bar Council (JBC) judicial appointments (in view of the already high level of
vacancies and the backlog of cases) and submits this as an
Same; Same; An administrative matter that is entered administrative matter that the Court, in the exercise of its
in the Court’s docket is either an administrative case (A.C.) supervision over the Judiciary, should act upon. At the
or an administrative matter (A.M.) submitted to the same time, it cites the “public discourse and controversy”
Court for its consideration and action pursuant to its power now taking place because of the application of the election
of supervision; An A.C. involves disciplinary and other ban on the appointment of the Chief Justice, citing in this
actions over members of the Bar, based on the Court’s regard the very same reasons mentioned
supervision over them arising from the Supreme Court’s in Valenzuela about the need to resolve the issue and avoid
authority to promulgate rules relating to the admission to the recurrence of conflict thereon between the Executive
the practice of law and to the Integrated Bar; An A.M. is a and the Judiciary on the matter; and the need to “avoid any
matter based on the Supreme Court’s power of supervision— possible polemics concerning the matter.” The petition
under Section 6, Article VIII, this refers to the Court’s mentions as well that the Court addressed the election ban
administrative supervision over all courts and the personnel issue in Valenzuela as an A.M. case, and apparently takes
thereof, and, under Section 8, it refers to its supervision over the lead from this decided A.M. matter.692
the JBC.—An administrative matter that is entered in the 6 SUPREME COURT REPORTS ANNOTATED
Court’s docket is either an administrative case (A.C.) or an 92
administrative matter (A.M.) submitted to the Court for its De Castro vs. Judicial and Bar Council (JBC)
consideration and action pursuant to its power of
supervision. An A.C. involves disciplinary and other actions Same; Same; Declaratory Relief; The Supreme Court’s
over members of the Bar, based on the Court’s supervision supervision over the Judicial and Bar Council (JBC), the
over them arising from the Supreme Court’s authority to latter’s need for guidance, and the existence of an actual
promulgate rules relating to the admission to the practice of controversy that Soriano and Tolentino cite, save the
law and to the Integrated Bar. Closely related to A.C. cases Mendoza petition from being one for declaratory relief,
are the Bar Matter (B.M.) cases particularly involving which petition is originally cognizable by the Regional Trial
admission to the practice of law. An A.M. is a matter based Court, not by this Court.—Given the justiciable Soriano and
Tolentino petitions that directly address the JBC and its seven Members.” The Chief Justice is a Member of the En
activities, the impact of the above-outlined realities on the Banc and of the First Division—in fact, he is the Chair of
grant of a writ of prohibition, and the undeniable the En Banc and of the First Division—but even as Chair is
supervision that the Supreme Court exercises over the JBC counted in the total membership of the En Bancor the
as well as its role as the interpreter of the Constitution— Division for all purposes, particularly of quorum. Thus, at
sufficiently compelling reason exists to recognize the the same time that Section 4(1) speaks of a “Supreme
Mendoza petition as a properly filed A.M. Court. . . composed of one Chief Justice and fourteen
petition that should fully be heard in these proceedings to Associate Justices,” it likewise calls all of them Members in
fully ventilate the supervisory aspect of the Court’s defining how they will
relationship with the JBC and to reflect, once again, 693
how this Court views the issues first considered VOL. 615, March 17, 2010 693
inValenzuela. The Court’s supervision over the JBC, the De Castro vs. Judicial and Bar Council (JBC)
latter’s need for guidance, and the existence of an actual sit in the Court. Thus, both by law and history, the
controversy that Soriano and Tolentino cite, save the Chief Justice has always been a Member of the Court—
Mendoza petition from being one for declaratory relief, although, as a primus inter pares—appointed by the
which petition is originally cognizable by the Regional Trial President together with every other Associate Justice. For
Court, not by this Court. this reason, we should dismiss the Soriano petition for lack
Same; Same; Both by law and history, the Chief Justice of merit.
has always been a Member of the Court—although, as a Same; Same; Appointments; Judiciary; From their
primus inter pares—appointed by the President together wordings, urgency leaps up from Section 4(1) of Article VIII
with every other Associate Justice. For this reason, we of the Constitution while no such message emanates from
should dismiss the Soriano petition for lack of merit.—The Section 9—in the latter the Judicial and Bar Council (JBC)
use of the generic term “Members of the Supreme Court” appears free to determine when a submission is to be made,
under Section 9, Article VIII in delineating the appointing obligating the President to issue appointments within 90
authority under the 1987 Constitution, is not new. This was days from the submission of the JBC list; Section 9 may
the term used in the present line of Philippine offer more flexibility in its application as the mandate for
Constitutions, from 1935 to 1987, and the inclusion of the the President is to issue appointments within 90 days from
Chief Justice with the general term “Member of the Court” submission of the list, without specifying when the
has never been in doubt. In fact, Section 4(1) of the present submission should be made.—Section 15 on its face
Constitution itself confirms that the Chief Justice is a disallows any appointment in clear negative terms (shall
Member of the Court when it provides that the Court “may not make) without specifying the appointments covered by
sit en banc or, in its discretion, in divisions of three, five, or the prohibition. From this literal reading springs the
argument that no exception is provided (except the words or terms shall be understood in their ordinary
exception found in Section 15 itself) so that even the meaning. In this case, the individual provisions, in
Judiciary is covered by the ban on appointments. On the themselves, are clear; the conflict surfaces when they
other hand, Section 4(1) is likewise very clear and operate in tandem or against one another.
categorical in its terms: any vacancy in the Court shall be Same; Same; Same; Same; Judgments; It appears clear
filled within 90 days from its occurrence. In the way of that In Re: Appointments dated March 30, 1998 of Hon.
Section 15, Section 4(1) is also clear and categorical and Mateo A. Valenzuela and Hon. Placido B. Vallarta as
provides no exception; the appointment refers solely to the Judges of the Regional Trial Court of Branch 62, Bago City,
Members of the Supreme Court and does not mention any and of Branch 24, Cabanatuan City, Respectively, A.M. No.
period that would interrupt, hold or postpone the 90-day 98-5-01-SC, November 9, 1998 (Valenzuela), 298 SCRA 408
requirement. Section 9 may offer more flexibility in its (1998), should be read and appreciated for what it is—a
application as the mandate for the President is to issue ruling made on the basis of the Court’s supervision
appointments within 90 days from submission of the list, over judicial personnel that upholds the election ban as
without specifying when the submission should be made. against the appointment of lower court judges appointed
From their wordings, urgency leaps up from Section 4(1) pursuant to the period provided by Section 9 of Article
while no such message emanates from Section 9; in the VIII—Valenzuela’s application to the filling up of a vacancy
latter the JBC appears free to determine when a in the Supreme Court is a mere obiter dictum as the Court is
submission is to be made, obligating the President to issue largely governed by Section 4(1) with respect to the period of
appointments within 90 days from the submission of the appointment.—The Valenzuela decision gives the full flavor
JBC list. From this view, the appointment period under of how the election ban issue arose because of Chief Justice
Section 9 is one that is flexible and can move. Thus, in Narvasa’s very candid treatment of the facts and the
terms of conflict, Sections 4(1) and Sections 15 can be said issue. Valenzuela openly stated that at the root of the
to be directly in conflict with each other, while a conflict is dispute was the then existing vacancy in the Court and the
much less evident from a comparison of Sections 9 and 15. difference of opinion on the matter between the Executive
This conclusion answers the verba legis argument of the and the Court on the application of Section 15, Article VII,
Peralta petition that when the words or terms of a statute in relation with Section 4(1) and 9 of Article VIII, of the
or provision is clear and unambiguous, then no Constitution. What appears very clear from the decision,
interpretation is necessary as the however, is that the factual situation the Court ruled upon,
694 in the exercise of its supervision of court personnel, was the
6 SUPREME COURT REPORTS ANNOTATED appointment by the President of two RTC judges during the
94 period of the ban. It is clear from the decision, too, that no
De Castro vs. Judicial and Bar Council (JBC) immediate appointment was ever made to the Court for the
replacement of retired Justice Ricardo Francisco as the JBC Supreme Court under Section 4(1) of the same Article.
failed to meet on the required nominations prior to the Because of his misappreciation, Tolentino is likewise
onset of the election ban. From this perspective, it appears mistaken in his appeal to the principle of stare decisis. The
clear to me that Valenzuela should be read and appreciated stability of judgments is indeed a glue that the Judiciary
for what it is—a ruling made on the basis of the Court’s and the litigating public cannot do without if we are to have
supervision over judicial personnel that upholds the election a working and stable justice system. Because of this role,
ban as against the appointment of lower court judges the principle is one that binds all courts, including this
appointed pursuant to the period provided by Section 9 of Court, and the litigating public. The principle, however, is
Article VIII. Thus, Valenzuela’s application to the filling up not open-ended and contains its own self-limitations; it
of a vacancy in the Supreme Court is a mere obiter applies only to actions in all future similar cases and to
dictum as the Court is largely governed by Section 4(1) with none other. Where ample room for distinction exists, as in
respect to the period of appointment. The Section 4(1) this case, then stare decisis does not apply.
period, of course and as already mentioned above, has an Same; Same; Same; Same; Same; Another aspect of
impact uniquely its own that is different from stare decisis that must be appreciated is that Supreme Court
695 rulings are not written in stone so that they will remain
VOL. 615, March 17, 2010 695 unerased and applicable for all times.—Another aspect
De Castro vs. Judicial and Bar Council (JBC) of stare decisis that must be appreciated is that Supreme
that created by the period provided for the lower court Court rulings are not written in stone so that they will
under Section 9. remain unerased and applicable for all times. The Supreme
Same; Same; Same; Same; Stare Decisis; The stability Court’s review of rulings and their binding effects is a
of judgments is indeed a glue that the Judiciary and the continuing one so that a ruling in one era may be declared
litigating public cannot do without if we are to have a by the Court at some future time to be no longer true and
working and stable justice system.—I find it interesting that should thus be abandoned and changed. The best and most
Peralta largely justifies his position that the JBC should unforgettable example of this kind of change happened in
now be prohibited from proceeding with the nomination the United States when the US Supreme Court overturned
process based on Valenzuela as the prevailing rule that the ruling in Plessy v. Fergusson that upheld the
should be followed under the principle ofstare decisis. constitutionality of racial segregation under the “separate
Tolentino apparently misappreciates the reach and real but equal” doctrine. After half a century, the US Court
holding of Valenzuela, as explained and clarified above. A completely abandoned this ruling in the now famous Brown
ruling involving the appointment of lower court judges v. Board of Education when it ruled that “separate but
under Section 9, Article VIII cannot simply be bodily lifted equal” doctrine is inherently unequal in the context of
and appliedin toto to the appointment of Members of the public education. I mention this, if only as a reminder to
696 appointments to the Supreme Court. In the first place,
6 SUPREME COURT REPORTS ANNOTATED Section 4(1) covers only the appointment of 15 Members,
96 not in their totality, but singly and individually as Members
De Castro vs. Judicial and Bar Council (JBC) disappear from the Court and are replaced. Thus, the evil
one and all, that the terms of the Valenzuela ruling, if that the Aytona case sought to remove—mass midnight
truly applicable even to appointments to this Court, is not appointments—will not be present. Secondly, partisanship
written in stone and remains open for review by this Court. is hardly a reason that would apply to the Supreme Court
Same; Same; Same; Same; Same; Completeness has a except when the Members of the Court individually act in
heightened meaning when the missing Member is the head violation of their oaths or directly transgress our graft and
of the Judiciary and the Court in the person of the Chief corruption laws. Let it be remembered that the Constitution
Justice.—Valenzuela rests on the reasoning that the evil itself has entrusted to the Court the final and definitive
that Section 15 seeks to remedy—vote buying, midnight recourse in election contest involving the President, the
appointments and partisan reasons to influence the results Vice-President and Members of Congress. Because of this
of the election—is so pervasive so that the Section 15 ban reposed trust on the Supreme Court as a body, reasons of
should prevail over everything else. The Court, however, partisanship can hardly be a reason to systemically place
forgot in some statements in this case that hand in hand the whole Supreme Court under a ban on appointments
with Section 15 is Section 4(1) where the framers also during the election period.697
recognized, in clear and absolute terms, that a vacancy in VOL. 615, March 17, 2010 697
the Court should be filled up because of the importance of De Castro vs. Judicial and Bar Council (JBC)
having a Supreme Court with its full and complete Same; Same; Same; Same; Same; One voice can be a
membership. Completeness has a heightened meaning big difference if the missing voice is that of the Chief
when the missing Member is the head of the Judiciary and Justice.—The importance of the presence of one Member of
the Court in the person of the Chief Justice. the Court can and should never be underestimated,
Same; Same; Same; Same; Same; What Valenzuela particularly on issues that may gravely affect the nation.
failed to consider, because it was looking at the disputed Many a case has been won or lost on the basis of one vote.
provisions from the prism of two Regional Trial Court (RTC) On an issue of the constitutionality of a law, treaty or
judges, is that the reasons for the application of Section 15, statute, a tie vote—which is possible in a 14 member
Article VII may not at all exist in appointments to the court—means that the constitutionality is upheld. This was
Supreme Court.—What Valenzuelafailed to consider, our lesson in Isagani Cruz v. DENR Secretary, 347 SCRA
because it was looking at the disputed provisions from the 128 (2000). More than the vote, Court deliberation is the
prism of two RTC judges, is that the reasons for the core of the decision-making process and one voice less is not
application of Section 15, Article VII may not at all exist in only a vote less but a contributed opinion, an observation,
or a cautionary word less for the Court. One voice can be a Presidency; Appointments; Midnight Appointment Ban;
big difference if the missing voice is that of the Chief Judicial Review; Actual Case or Controversy; Under the
Justice. circumstances,
Same; Same; Same; Same; The reasons the former 698
Chief Justice cited in Valenzuela justify the application of 6 SUPREME COURT REPORTS ANNOTATED
the Section 15, Article VII as against the rule on 98
appointment of lower court judges under Section 9, De Castro vs. Judicial and Bar Council (JBC)
Article VIII—Section 9 does not impose a hard and fast rule the controversy is already ripe for adjudication for,
on the period to be observed, apparently because the urgency assuming that the ban on midnight appointment does not
of the appointment may not be as great as in the apply to the judiciary, then the Judicial and Bar Council’s
appointment of Members of the Supreme Court.—Where, as (JBC’s) suspension of its selection process would constitute a
inValenzuela, the Chief Justice of the Supreme Court, no violation of its duty under the Constitution to carry on with
less, appeared to have given up the benefit of an immediate such process until it is able to submit the desired list to the
appointment of Members of the Supreme Court, then incumbent President.—After taking some steps in the
extremely compelling reasons must have driven the Court selection process, the JBC held the process in abeyance,
to its conclusion. I fully understood though the former Chief unable to decide as yet when and to whom it will submit its
Justice’s conclusion in this case when I realized that he was list of nominees for the position that Chief Justice Puno will
not effectively ruling on Section 4(1) of Article VIII, and was vacate on May 17, 2010. Under the circumstances, the
in fact ruling on a case involving lower court judges. For controversy is already ripe for adjudication for, assuming
indeed, the reasons the former Chief Justice cited that the ban on midnight appointment does not apply to the
in Valenzuela justify the application of the Section 15, judiciary as the petitioners would have it, then the JBC’s
Article VII as against the rule on appointment of lower suspension of its selection process would constitute a
court judges under Section 9, Article VIII. As I have shown violation of its duty under the Constitution to carry on with
above, Section 9 does not impose a hard and fast rule on the such process until it is able to submit the desired list to the
period to be observed, apparently because the urgency of incumbent President. If my subdivision neighbor begins
the appointment may not be as great as in the appointment constructing a shed in his yard and tells me that he has
of Members of the Supreme Court. The period for ordered 20 pigs to raise there, I will not wait till the pigs
appointment can move at the discretion of the JBC, arrive and defecate before I bring an action to abate a
although the exercise of this discretion also carries its own nuisance.
butt-in and implicit limits. Same; Same; Same; Same; Judicial and Bar Council;
ABAD, J., Concurring Opinion: Assuming that an actual controversy has not yet developed
as to warrant action on the petitions filed in this case, the
Court has the authority, as an incident of its power of power of supervision over the JBC, to see to it that the JBC
supervision over the Judicial and Bar Council (JBC), to see faithfully executes its duties as the Constitution requires of
to it that the JBC faithfully executes its duties as the it.
Constitution requires of it.—As mandated by the Same; Same; Same; Same; Same; While the President
Constitution, the incumbent President should be able to fill can freely choose to appoint any person who meets the basic
up the vacancy within 90 days of its occurrence. This qualifications for a position in the Executive Department, he
presupposes that the incumbent President should have the does not have such freedom of choice when it comes to
list on or before May 17, the day the vacancy occurs, so she appointments in the judiciary—in the latter case, the
can comply with her duty under the Constitution to make Constitution provides in Section 9 of Article VIII that the
the appointment within the 90-day period provided by it. Of President can choose his appointee only from a Judicial and
course, the circumstances is such that the period for Bar Council (JBC) short list of its nominees.—Citing “In Re:
appointing the Chief Justice’s replacement will span the Appointments dated March 30, 1998 of Hon. Mateo A.
tenure of the incumbent President (for 44 days) and her Valenzuela and Hon. Placido B. Vallarta as Judges of the
successor (for 46 days), but it is the incumbent’s call Regional Trial Court of Branch 62, Bago City and of Branch
whether to exercise the power or pass it on. Again, 24, Cabanatuan City,” 298 SCRA 408 (1998), the oppositors
assuming as correct petitioners’ view that the ban on claim that the ban on midnight appointments applies to the
midnight appointments does not apply to the judiciary, the judiciary. After examining the reasons for the two
JBC’s suspension of its selection process places it in default, apparently conflicting provisions, the Court said that the
given its above duty in regard to the submission of its list of need to fill up vacancies in the judiciary within the period
nominees to the President within a time constraint. Under the Constitution provides must yield to the ban on
the same assumption, moreover, the petitioner citizens and Presidential midnight appointments. The Court explained
members of the bar would have a demandable right or this ruling:Considering the respective reasons for the
interest in having the JBC proceed with its time frames for filling vacancies in the courts and
699 the restriction on the President’s power of
VOL. 615, March 17, 2010 699 appointment, it is this Court’s view that, as a general
De Castro vs. Judicial and Bar Council (JBC) proposition, in case of conflict, the former should
selection process and submit its list of nominees in yield to the latter. Surely, the prevention of vote-
time for the incumbent President or her successor to fill up buying and similar evils outweighs the need for
the vacancy within the period required by the Constitution. avoiding delays in filling up of court vacancies or the
Alternatively, assuming that an actual controversy has not disposition of some cases. Temporary vacancies can
yet developed as to warrant action on the petitions filed in abide the period of the ban which, incidentally and
this case, the Court has the authority, as an incident of its as earlier pointed out, comes to exist only once in
every six years. Moreover, those occurring in the should at least be 20,000 lawyers who are 40 years of age
lower courts can be filled temporarily by and have 15 years of law practice of some kind who could
designation. But prohibited appointments are long- qualify for Chief Justice. Yet, the President can choose only
lasting and permanent in their effects. They may, as from a list of three, four, or five lawyers that the JBC draws
earlier pointed out, in fact influence the results of up for him. Consequently, the idea that the outgoing
elections and, for that reason, their making is incumbent President can take advantage of her
considered an election offense. But the above assumes appointment of a Chief Justice to buy votes in the coming
that the outgoing incumbent President can make elections is utterly ridiculous. She has no control over the
appointments in the judiciary during JBC’s actions.
700 Same; Same; Same; Same; Same; Separation of
7 SUPREME COURT REPORTS ANNOTATED Powers; The Supreme Court that the Chief Justice heads is
00 not a support agency under the President; The proposition
De Castro vs. Judicial and Bar Council (JBC) that a Chief Justice will always be beholden to the President
the period of the ban “to buy votes” and commit who appoints him is a myth.—The idea that the incoming
“similar evils” like denying the incoming President the President should have the opportunity to choose a Chief
opportunity to consider other appointees in the light of his Justice who will support his policies does not also make
new policies, a point former President Diosdado Macapagal sense. The Supreme Court that the Chief Justice heads is
made in Aytona v. Castillo, 4 SCRA (1962). The fact, not a support agency under the President. One of the
however, is that while the President can freely choose to functions of the Supreme Court is to provide a
appoint any person who meets the basic qualifications for a Constitutional check on abuses of the Executive
position in the Executive Department, he does not have Department. The proposition that a Chief Justice will
such freedom of choice when it comes to appointments in always be beholden to the President who appoints him is a
the judiciary. In the latter case, the Constitution provides myth. Former President Estrada appointed Chief Justice
in Section 9 of Article VIII that the President can choose his Hilario G. Davide, Jr. who presided over his impeachment
appointee only from a JBC short list of its nominees. and administered the oath to the incumbent President at
Same; Same; Same; Same; Same; The idea that the the heels of EDSA II while President Estrada still sat in
outgoing incumbent President can take advantage of her Malacañang. Chief Justices Artemio V. Pangani-
701
appointment of a Chief Justice to buy votes in the coming
elections is utterly ridiculous—she has no control over the VOL. 615, March 17, 2010 701
Judicial and Bar Council’s (JBC’s) actions.—In reality, a De Castro vs. Judicial and Bar Council (JBC)
President’s choice of Chief Justice is in fact first a choice of ban and Reynato S. Puno voted against positions taken
the JBC before it is that of the President. Easily there by the administration of the incumbent President who
appointed them both to their position. These Chief Justices Ibarra M. Gutierrez for oppositor-intervenors
like those before them were first choices of the JBC before Walden F. Bello and Loreta Ann P. Rosales.
they were those of the Presidents concerned. 702
SPECIAL CIVIL ACTIONS in the Supreme Court. 702 SUPREME COURT REPORTS ANNOTATED
Certiorari, Prohibition and Mandamus; Query on De Castro vs. Judicial and Bar Council (JBC)
the Applicability of Section 15, Article VII to BERSAMIN, J.:
Appointments to the Judiciary; and PETITION to The compulsory retirement of Chief Justice Reynato
Enjoin the JBC from Submitting a List of Nominees S. Puno by May 17, 2010 occurs just days after the
for the Position of Chief Justice to the President. coming presidential elections on May 10, 2010. Even
The facts are stated in the opinion of the Court. before the event actually happens, it is giving rise to
Saklolo A. Leaño, Rita Linda V. Jimeno and Rico many legal dilemmas. May the incumbent President
A. Limpengco for petitioner in G.R. No. 191420. appoint his successor, considering that Section 15,
Estelito P. Mendoza for petitioner in A.M. No. 10- Article VII (Executive Department) of the Constitution
2-5-SC. prohibits the President or Acting President from
Amador Z. Tolentino, Jr. and Roland B. Inting for making appointments within two months immediately
petitioner in G.R. No. 191342. before the next presidential elections and up to the end
Arturo M. De Castro for and on his own behalf in of his term, except temporary appointments to
G.R. No. 191002. executive positions when continued vacancies therein
Jaime N. Soriano for himself in G.R. No. 191032. will prejudice public service or endanger public safety?
Manuel M. Lazaro, et al. for petitioner in G.R. No. What is the relevance of Section 4 (1), Article VIII
191057. (Judicial Department) of the Constitution, which
Benjamin P. Lozada III, et al. for movant- provides that any vacancy in the Supreme Court shall
intervenor Atty. Marlon B. Urbano. be filled within 90 days from the occurrence thereof, to
Pitero M. Reig for oppositor-in-intervention Board the matter of the appointment of his successor? May
of the Integrated Bar of the Philippines-Pasay, the Judicial and Bar Council (JBC) resume the process
Parañaque, Las Piñas and Muntinlupa Chapters. of screening the candidates nominated or being
Edre U. Olalia, et al. for oppositor-intervenor. considered to succeed Chief Justice Puno, and submit
Al A. Parreño for movant oppositors-in- the list of nominees to the incumbent President even
intervention. during the period of the prohibition under Section 15,
Article VII? Does mandamus lie to compel the In Administrative Matter No. 10-2-5-SC,5 petitioner
submission of the shortlist of nominees by the JBC? Estelito M. Mendoza, a former Solicitor General, seeks
Precís of the Consolidated Cases a ruling from the Court for the guidance of the JBC on
Petitioners Arturo M. De Castro and John G. whether Section 15, Article VII applies to
Peralta respectively commenced G.R. No. 1910021 and appointments to the Judiciary.
G.R. No. 1911492 as special civil actions In G.R. No. 191342,6 which the Court consolidated
for certiorari andmandamus, praying that the JBC be on March 9, 2010 with the petitions earlier filed,
compelled to submit to the incumbent President the petitioners Amador Z. Tolentino, Jr. and Roland B.
list of at least three nominees for the position of the Inting, Integrated Bar of the Philippines (IBP)
next Chief Justice. Governors for Southern Luzon and Eastern Visayas,
_______________ respectively, want to enjoin and restrain the JBC from
submitting a list of nominees for the position of Chief
1 Filed on February 9, 2010.
2 Begun on February 23, 2010. Justice to the President for appointment during the
703 period provided for in Section 15, Article VII.
VOL. 615, March 17, 2010 703 All the petitions now before the Court pose as the
De Castro vs. Judicial and Bar Council (JBC) principal legal question whether the incumbent
In G.R. No. 191032,3 Jaime N. Soriano, via his President can appoint the successor of Chief Justice
petition for prohibition, proposes to prevent the JBC Puno upon his retirement. That question is
from conducting its search, selection and nomination undoubtedly impressed with transcendental
proceedings for the position of Chief Justice. importance to the Nation, because the appointment of
In G.R. No. 191057, a special civil action the Chief Justice is any President’s most important
formandamus,4 the Philippine Constitution Association appointment.
(PHILCONSA) wants the JBC to submit its list of _______________

nominees for the position of Chief Justice to be vacated 3 Initiated on February 10, 2010.
by Chief Justice Puno upon his retirement on May 17, 4 Commenced on February 11, 2010.
2010, because the incumbent President is not covered 5 Dated February 15, 2010.
by the prohibition that applies only to appointments in 6 Filed on March 8, 2010.
704
the Executive Department.
704 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
vested only in the Supreme Court under the
A precedent frequently cited is In Re Appointments Constitution.” As such, he contends that the JBC acted
Dated March 30, 1998 of Hon. Mateo A. Valenzuela with grave abuse of discretion in deferring the
and Hon. Placido B. Vallarta as Judges of the Regional submission of the list of nominees to the President;
Trial Court of Branch 62, Bago City and of Branch 24, and that a “final and definitive resolution of the
Cabanatuan City, respectively (Valenzuela),7 by which constitutional questions raised above would diffuse
the Court held that Section 15, Article VII prohibited (sic) the tension in the legal community that would go
the exercise by the President of the power to appoint to a long way to keep and maintain stability in the
judicial positions during the period therein fixed. judiciary and the political system.”9
In G.R. No. 191002, De Castro submits that the _______________
conflicting opinions on the issue expressed by legal
7 A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.
luminaries—one side holds that the incumbent 8 Petition in G.R. No. 191002, pp. 3-4.
President is prohibited from making appointments 9 Id., p. 5.
within two months immediately before the coming 705
presidential elections and until the end of her term of VOL. 615, March 17, 2010 705
office as President on June 30, 2010, while the other De Castro vs. Judicial and Bar Council (JBC)
insists that the prohibition applies only to In G.R. No. 191032, Soriano offers the view that
appointments to executive positions that may the JBC committed a grave abuse of discretion
influence the election and, anyway, paramount amounting to lack or excess of its jurisdiction when it
national interest justifies the appointment of a Chief resolved unanimously on January 18, 2010 to open the
Justice during the election ban—has impelled the JBC search, nomination, and selection process for the
to defer the decision to whom to send its list of at least position of Chief Justice to succeed Chief Justice Puno,
three nominees, whether to the incumbent President because the appointing authority for the position of
or to her successor.8He opines that the JBC is thereby Chief Justice is the Supreme Court itself, the
arrogating unto itself “the judicial function that is not President’s authority being limited to the appointment
conferred upon it by the Constitution,” which has of the Members of the Supreme Court. Hence, the JBC
limited it to the task of recommending appointees to should not intervene in the process, unless a nominee
the Judiciary, but has not empowered it to “finally is not yet a Member of the Supreme Court.10
resolve constitutional questions, which is the power For its part, PHILCONSA observes in its petition in
G.R. No. 191057 that “unorthodox and exceptional
circumstances spawned by the discordant President, within a reasonable time, its nomination
interpretations, due perhaps to a perfunctory list for the position of chief justice upon the mandatory
understanding, of Sec. 15, Art. VII in relation to Secs. retirement of Chief Justice Reynato S. Puno, in
4(1), 8(5) and 9, Art. VIII of the Constitution” have compliance with its mandated duty under the
bred “a frenzied inflammatory legal debate on the Constitution” in the event that the Court resolves that
constitutional provisions mentioned that has divided the President can appoint a Chief Justice even during
the bench and the bar and the general public as well, the election ban under Section 15, Article VII of the
because of its dimensional impact to the nation and Constitution.13
the people,” thereby fashioning “transcendental The petitioners in G.R. No. 191342 insist that there
questions or issues affecting the JBC’s proper exercise is an actual controversy, considering that the “JBC has
of its “principal function of recommending appointees initiated the process of receiving applications for the
to the Judiciary” by submitting only to the President position of Chief Justice and has in fact begun the
(not to the next President) “a list of at least three evaluation process for the applications to the position,”
nominees prepared by the Judicial and Bar Council for and “is perilously near completing the nomination
every vacancy” from which the members of the process and coming up with a list of nominees for
Supreme Court and judges of the lower courts may be submission to the President, entering into the period of
appointed.”11 PHILCONSA further believes and the ban on midnight appointments on March 10,
submits that now is the time to revisit and 2010,” which “only highlights the pressing and
review Valenzuela, the “strange and exotic Decision of compelling need for a writ of prohibition to enjoin such
the Court en banc.”12 alleged ministerial function of submitting the list,
Peralta states in his petition in G.R. No. 191149 especially if it will be cone within the period of the ban
thatmandamus can compel the JBC “to immediately on midnight appointments.”14
transmit to the
_______________ Antecedents
10 Petition in G.R. No. 191032, pp. 4-8. These cases trace their genesis to the controversy
11 Petition in G.R. No. 191057, pp. 1-2.
12 Id., at p. 11.
that has arisen from the forthcoming compulsory
706 retirement of Chief Justice Puno on May 17, 2010, or
706 SUPREME COURT REPORTS ANNOTATED seven days after the presidential election. Under
De Castro vs. Judicial and Bar Council (JBC) Section 4(1), in relation to Section 9, Article
VIII, that “vacancy shall be filled within ninety days As to the time to submit this shortlist to the proper
from the occurrence thereof” from a “list of at least appointing authority, in the light of the Constitution,
three nominees prepared by the Judicial and Bar existing laws and jurisprudence, the JBC welcomes and will
Council for every vacancy.” consider all views on the matter.
18 January 2010.
On December 22, 2009, Congressman Matias V.
(sgd.)
Defensor, an ex officio member of the JBC, addressed a
MA. LUISA D. VILLARAMA
letter to the JBC, requesting that the process for Clerk of Court &
nominations to the office of the Chief Justice be Ex-Officio Secretary
commenced immediately. Judicial and Bar Council
_______________
As a result, the JBC opened the position of Chief
13 Petition in G.R. No. 191149. Justice for application or recommendation, and
14 Petition in G.R. No. 191342. published for that purpose its announcement dated
707 January 20, 2010,16 viz.:
VOL. 615, March 17, 2010 707 “The Judicial and Bar Council (JBC) announces the
De Castro vs. Judicial and Bar Council (JBC) opening for application or recommendation, of the position
of CHIEF JUSTICE OF THE SUPREME COURT, which
In its January 18, 2010 meeting en banc, therefore, will be vacated on 17 May 2010 upon the retirement of the
the JBC passed a resolution,15 which reads: incumbent Chief Justice, HON. REYNATO S. PUNO.
“The JBC, in its en banc meeting of January 18, 2010, Applications or recommendations for this position must
unanimously agreed to start the process of filling up the be submitted not later than 4 February 2010 (Thursday) to
position of Chief Justice to be vacated on May 17, 2010 the JBC Secretariat xxx:”
_______________
upon the retirement of the incumbent Chief Justice
Honorable Reynato S. Puno. 15 http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf
It will publish the opening of the position for 16 http://jbc.judiciary.gov.ph/announcements/jbc_announce_2009/j
applications or recommendations; deliberate on the list of an22%20%2710.pdf
candidates; publish the names of candidates; accept 708
comments on or opposition to the applications; conduct 708 SUPREME COURT REPORTS ANNOTATED
public interviews of candidates; and prepare the shortlist of De Castro vs. Judicial and Bar Council (JBC)
candidates.
The announcement was published on January 20, conversation with the Executive Officer of the JBC on
2010 in the Philippine Daily Inquirer and The February 8, 2010).20
Philippine Star.17 The JBC excluded from consideration former RTC
Conformably with its existing practice, the JBC Judge Florentino Floro (for failure to meet the
“automatically considered” for the position of Chief standards set by the JBC rules); and Special
Justice the five most senior of the Associate Justices of Prosecutor Dennis Villa-Ignacio of the
the Court, namely: Associate Justice Antonio T. _______________
Carpio; Associate Justice Renato C. Corona; Associate
17 Comment of the JBC, p. 3.
Justice Conchita Carpio Morales; Associate Justice 18 Id.
Presbitero J. Velasco, Jr.; and Associate Justice 19 Id., at pp. 4-5.
Antonio Eduardo B. Nachura. However, the last two 20 Id., at p. 5.
709
declined their nomination through letters dated
VOL. 615, March 17, 2010 709
January 18, 2010 and January 25, 2010, respectively.18
Others either applied or were nominated. Victor De Castro vs. Judicial and Bar Council (JBC)
Fernandez, the retired Deputy Ombudsman for Luzon, Office of the Ombudsman (due to cases pending in the
applied, but later formally withdrew his name from Office of the Ombudsman).21
consideration through his letter dated February 8, In its meeting of February 8, 2010, the JBC
2010. Candidates who accepted their resolved to proceed to the next step of announcing the
nominations without conditions were Associate Justice names of the following candidates to invite the public
Renato C. Corona; Associate Justice Teresita J. to file their sworn complaint, written report, or
Leonardo-De Castro; Associate Justice Arturo D. opposition, if any, not later than February 22, 2010, to
Brion; and Associate Justice Edilberto G. Sandoval wit: Associate Justice Carpio, Associate Justice
(Sandiganbayan). Candidates who accepted their Corona, Associate Justice Carpio Morales, Associate
nominations with conditions were Associate Justice Justice Leonardo-De Castro, Associate Justice Brion,
Antonio T. Carpio and Associate Justice Conchita and Associate Justice Sandoval.
Carpio Morales.19 Declining their nominations were Theannouncement came out in the Philippine Daily
Atty. Henry Villarica (via telephone conversation with Inquirerand The Philippine Star issues of February 13,
the Executive Officer of the JBC on February 5, 2010) 2010.22
and Atty. Gregorio M. Batiller, Jr. (via telephone
Issues
Although it has already begun the process for the achieved by a ruling from the Court, the integrity of
filling of the position of Chief Justice Puno in the process and the credibility of whoever is appointed
accordance with its rules, the JBC is not yet decided on to the position of Chief Justice, may irreparably be
when to submit to the President its list of nominees for impaired.”23
the position due to the controversy now before us being Accordingly, we reframe the issues as submitted by
yet unresolved. In the meanwhile, time is marching in each petitioner in the order of the chronological filing
quick step towards May 17, 2010 when the vacancy of their petitions.
occurs upon the retirement of Chief Justice Puno.
The actions of the JBC have sparked a vigorous G.R. No. 191002
debate not only among legal luminaries, but also
among non-legal quarters, and brought out highly a. Does the JBC have the power and authority to
disparate opinions on whether the incumbent resolve the constitutional question of whether the
President can appoint the next Chief Justice or not. incumbent President can appoint a Chief Justice
Petitioner Mendoza notes that inValenzuela, which during the election ban period?
involved the appointments of two judges of the b. Does the incumbent President have the power
Regional Trial Court, the Court addressed this issue and authority to appoint during the election ban the
now before us as an administrative matter “to avoid successor of Chief Justice Puno when he vacates the
any possible polemics concerning the matter,” but he position of Chief Justice on his retirement on May 17,
opines that the polemics leading to Valenzuela “would 2010?
be miniscule [sic] compared to the “polemics” that have G.R. No. 191032
now erupted in regard to the current controversy,” and a. Is the power to appoint the Chief Justice vested
that unless “put to a halt, and this may only be in the Supreme Court en banc?
_______________ G.R. No. 191057
a. Is the constitutional prohibition against
21 Id. appointment under Section 15, Article VII of the
22 Id., at p. 6.
710
Constitution applicable only to positions in the
710 SUPREME COURT REPORTS ANNOTATED Executive Department?
De Castro vs. Judicial and Bar Council (JBC) b. Assuming that the prohibition under Section 15,
Article VII of the Constitution also applies to
members of the Judiciary, may such
appointments be excepted because they are a. Does the JBC have the discretion to withhold the
impressed with public interest or are demanded submission of the short list to President Gloria
by the exigencies of public service, thereby Macapagal-Arroyo?
justifying these appointments during the period G.R. No. 191342
of prohibition? a. Does the JBC have the authority to submit the
c. Does the JBC have the authority to decide list of nominees to the incumbent President
whether or not to include and submit the names without committing a grave violation of the
of nominees who mani- Constitution and jurisprudence prohibiting the
_______________ incumbent President from making midnight
appointments two months immediately preceding
23 Petition in A.M. No. 10-2-5-SC, pp. 5-6.
711 the next presidential elections until the end of
VOL. 615, March 17, 2010 711 her term?
De Castro vs. Judicial and Bar Council (JBC) b. Is any act performed by the JBC, including the
fested interest to be nominated for the position of Chief vetting of the candidates for the position of Chief
Justice on the understanding that his/her nomination Justice, constitutionally invalid in view of the
will be submitted to the next President in view of the JBC’s illegal composition allowing each member
prohibition against presidential appointments from from the Senate and the House of
March 11, 2010 until June 30, 2010? Representatives to have one vote each?
A.M. No. 10-2-5-SC On February 16, 2010, the Court directed the JBC
a. Does Section 15, Article VII of the Constitution and the Office of the Solicitor General (OSG) to
apply to appointments to positions in the comment on the consolidated petitions, except that
Judiciary under Section 9, Article VIII of the filed in G.R. No. 191342.712
Constitution? 712 SUPREME COURT REPORTS ANNOTATED
b. May President Gloria Macapagal-Arroyo make De Castro vs. Judicial and Bar Council (JBC)
appointments to the Judiciary after March 10,
2010, including that for the position of Chief On February 26, 2010, the JBC submitted its
Justice after Chief Justice Puno retires on May comment, reporting therein that the next stage of the
17, 2010? process for the selection of the nominees for the
G.R. No. 191149 position of Chief Justice would be the public interview
of the candidates and the preparation of the short list does not begin with each vacancy or end with each
of candidates, “including the interview of the nomination, because the goal is “to submit the list of
constitutional experts, as may be needed.”24 It stated:25 nominees to Malacañang on the very day the vacancy
Likewise, the JBC has yet to take a position on arises”;26 the JBC was thus acting within its
when to submit the shortlist to the proper jurisdiction when
appointing authority, in light of Section 4 (1), _______________
Article VIII of the Constitution, which provides
24 Comment of the JBC, p. 6.
that vacancy in the Supreme Court shall be filled 25 Id., at p. 7; bold emphasis is in the original text.
within ninety (90) days from the occurrence 26 Comment of the OSG, pp. 13-14.
thereof, Section 15, Article VII of the 713
Constitution concerning the ban on Presidential VOL. 615, March 17, 2010 713
appointments “two (2) months immediately De Castro vs. Judicial and Bar Council (JBC)
before the next presidential elections and up to it commenced and set in motion the process of
the end of his term” and Section 261 (g), Article selecting the nominees to be submitted to the
XXII of the Omnibus Election Code of the President for the position of Chief Justice to be vacated
Philippines. by Chief Justice Puno;27 (c) petitioner Soriano’s theory
12. Since the Honorable Supreme Court is the final that it is the Supreme Court, not the President, who
interpreter of the Constitution, the JBC will be has the power to appoint the Chief Justice, is incorrect,
guided by its decision in these consolidated and proceeds from his misinterpretation of the phrase
Petitions and Administrative Matter. “members of the Supreme Court” found in Section 9,
On February 26, 2010, the OSG also submitted its Article VIII of the Constitution as referring only to the
comment, essentially stating that the incumbent Associate Justices, to the exclusion of the Chief
President can appoint the successor of Chief Justice Justice; 28 (d) a writ of mandamus can issue to compel
Puno upon his retirement by May 17, 2010. the JBC to submit the list of nominees to the
The OSG insists that: (a) a writ of prohibition President, considering that its duty to prepare the list
cannot issue to prevent the JBC from performing its of at least three nominees is unqualified, and the
principal function under the Constitution to submission of the list is a ministerial act that the JBC
recommend appointees in the Judiciary; (b) the JBC’s is mandated to perform under the Constitution; as
function to recommend is a “continuing process,” which such, the JBC, the nature of whose principal function
is executive, is not vested with the power to resolve
who has the authority to appoint the next Chief to the ban against midnight appointments, or its
Justice and, therefore, has no discretion to withhold effects on such period, or vice versa;32 that had the
the list from the President; 29 and (e) a writ framers intended the prohibition to apply to Supreme
of mandamus cannot issue to compel the JBC to Court appointments, they could have easily expressly
include or exclude particular candidates as nominees, stated so in the Constitution, which explains why the
considering that there is no imperative duty on its part prohibition found in Article VII (Executive
to include in or exclude from the list particular Department) was not written in Article VIII (Judicial
individuals, but, on the contrary, the JBC’s Department); and that the framers also incorporated
determination of who it nominates to the President is in Article VIII ample restrictions or limitations on the
an exercise of a discretionary duty.30 President’s power to appoint members of the Supreme
The OSG contends that the incumbent President Court to ensure its independence from “political
may appoint the next Chief Justice, because the vicissitudes” and its “insulation from political
prohibition under Section 15, Article VII of the pressures,”33 such as stringent qualifications for the
Constitution does not apply to appointments in the positions, the establishment of the JBC, the specified
Supreme Court. It argues that any vacancy in the period within which the President shall appoint a
Supreme Court must be filled within 90 days from its Supreme Court Justice.
occurrence, pursuant to Section 4(1), Article VIII of the The OSG posits that although Valenzuela involved
Constitution;31 that in their deliberations on the the appointment of RTC Judges, the situation now
manda- refers to the appointment of the next Chief Justice to
_______________ which the prohibition does not apply; that, at any
rate, Valenzuelaeven recognized that there might be
27 Id., at p. 14.
28 Id., at p. 15. “the imperative need for an appointment during the
29 Id., at pp. 20-24. period of the ban,” like when the membership of the
30 Id., at pp. 25-27. Supreme Court should be “so reduced that it will have
31 Id., at pp. 29-30.
no quorum, or should the voting on a particular
714
714 SUPREME COURT REPORTS ANNOTATED important question requiring expeditious resolution be
De Castro vs. Judicial and Bar Council (JBC)
divided”;34 and that Valenzuela also recognized that the
filling of vacancies in the Judiciary is undoubtedly in
tory period for the appointment of Supreme Court
the public interest, most especially if there is any
Justices, the framers neither mentioned nor referred
compelling reason to justify the making of the causing a vacancy, it also becomes incumbent upon the
appointments during the period of the prohibition.35 JBC to start the selection process for the filling up of
Lastly, the OSG urges that there are now the vacancy in accordance with the constitutional
undeniably compelling reasons for the incumbent mandate.39
President to appoint the _______________
_______________
36 Id., at pp. 35-36. The OSG posits:
32 Id. National interest compels the President to make such
33 Id., at pp. 32-33. appointment for it is particularly during this crucial period
34 Id., at pp. 34-35. when national leaders are seeking fresh mandates from the
35 Id. people that the Supreme Court, more than at any other time,
715 represents stability. Hence, a full court is ideal to ensure not
only due deliberation on and careful consideration of issues
VOL. 615, March 17, 2010 715
but also expeditious disposition of cases.
De Castro vs. Judicial and Bar Council (JBC) Indeed, such function becomes especially significant in
next Chief Justice, to wit: (a) a deluge of cases view of the fact that this is the first time that the whole
country will experience automated elections.
involving sensitive political issues is “quite
37 Id., at pp. 36-37. The OSG stresses:
expected”;36 (b) the Court acts as the Presidential The possible fallouts or serious aftermath of allowing a
Electoral Tribunal (PET), which, sitting en banc, is the vacuum in the position of the Chief Justice may be greater
sole judge of all contests relating to the election, and riskier than the consequences or repercussions of
inaction. Needless to state, the appointment of the Chief
returns, and qualifications of the President and Vice Justice of this Honorable Court (sic) is the most important
President and, as such, has “the power to correct appointment vested by the 1987 Constitution to (sic) the
manifest errors on the statement of votes (SOV) and President.
certificates of canvass (COC)”;37 (c) if history has shown 38 Id., at p. 37.
39 Id., at p. 38.
that during ordinary times the Chief Justice was 716
appointed immediately upon the occurrence of the 716 SUPREME COURT REPORTS ANNOTATED
vacancy, from the time of the effectivity of the De Castro vs. Judicial and Bar Council (JBC)
Constitution, there is now even more reason to appoint
On March 9, 2010, the Court admitted the following
the next Chief Justice immediately upon the
comments/oppositions-in-intervention, to wit:
retirement of Chief Justice Puno;38 and (d) should the
(a) The opposition-in-intervention dated February
next Chief Justice come from among the incumbent
22, 2010 of Atty. Peter Irving Corvera (Corvera);40
Associate Justices of the Supreme Court, thereby
(b) The opposition-in-intervention dated February Students (LFS) Chairman James Mark Terry
22, 2010 of Atty. Christian Robert S. Lim (Lim); Lacuanan Ridon; National Union of Students of
(c) The opposition-in-intervention dated February the Philippines (NUSP) Chairman Einstein
23, 2010 of Atty. Alfonso V. Tan, Jr. (Tan); Recedes, College Editors Guild of the Philippines
(d) The comment/opposition-in-intervention dated (CEGP) Chairman Vijae Alquisola; and Student
March 1, 2010 of the National Union of People’s Christian Movement of the Philippines (SCMP)
Lawyers (NUPL); Chairman Ma. Cristina Angela Guevarra
(e) The opposition-in-intervention dated February (BAYAN et al.);
25, 2010 of Atty. Marlou B. Ubano (Ubano); _______________
(f) The opposition-in-intervention dated February
40 Filed by Atty. Pitero M. Reig.
25, 2010 of Integrated Bar of the Philippines- 717
Davao del Sur Chapter and its Immediate Past VOL. 615, March 17, 2010 717
President, Atty. Israelito P. Torreon (IBP- Davao De Castro vs. Judicial and Bar Council (JBC)
del Sur);
(g) The opposition-in-intervention dated February (i) The opposition-in-intervention dated March 3,
26, 2010 of Atty. Mitchell John L. Boiser (Boiser); 2010 of Walden F. Bello and Loretta Ann P.
(h) The consolidated comment/opposition-in- Rosales (Belloet al.); and
intervention dated February 26, 2010 of BAYAN (j) The consolidated comment/opposition-in-
Chairman Dr. Carolina P. Araullo; BAYAN intervention dated March 4, 2010 of the Women
Secretary General Renato M. Reyes, Jr.; Trial Lawyers Organization of the Philippines
Confederation for Unity, Recognition and (WTLOP), represented by Atty. Yolanda
Advancement of Government Employees Quisumbing-Javellana; Atty. Belleza Alojado
(COURAGE) Chairman Ferdinand Gaite; Demaisip; Atty. Teresita Gandionco-Oledan;
Kalipunan ng Damayang Mahihirap Atty. Ma. Verena Kasilag-Villanueva; Atty.
(KADAMAY) Secretary General Gloria Arellano; Marilyn Sta. Romana; Atty. Leonila de Jesus;
Alyansa ng Nagkakaisang Kabataan ng and Atty. Guinevere de Leon (WTLOP).
Samayanan Para sa Kaunlaran (ANAKBAYAN) Intervenors Tan, WTLOP, BAYAN et al., Corvera,
Chairman Ken Leonard Ramos; Tayo ang Pag- IBP Davao del Sur, and NUPL take the position that
asa Convenor Alvin Peters; League of Filipino De Castro’s petition was bereft of any basis, because
under Section 15, Article VII, the outgoing President is De Castro vs. Judicial and Bar Council (JBC)
constitutionally banned from making any sit and adjudge en banc or in divisions of three, five or
appointments from March 10, 2010 until June 30, seven members at its discretion; that a full
2010, including the appointment of the successor of membership of the Court is not necessary; that
Chief Justice Puno. Hence,mandamus does not lie to petitioner De Castro’s fears are unfounded and
compel the JBC to submit the list of nominees to the baseless, being based on a mere possibility, the
outgoing President if the constitutional prohibition is occurrence of which is entirely unsure; that it is not in
already in effect. Tan adds that the prohibition against the national interest to have a Chief Justice whose
midnight appointments was applied by the Court to appointment is unconstitutional and, therefore, void;
the appointments to the Judiciary made by then and that such a situation will create a crisis in the
President Ramos, with the Court holding that the duty judicial system and will worsen an already vulnerable
of the President to fill the vacancies within 90 days political situation.
from occurrence of the vacancies (for the Supreme Intervenors Tan, Ubano, WTLOP, Bello et al., IBP
Court) or from the submission of the list (for all other Davao del Sur Corvera, and Boiser regard De Castro’s
courts) was not an excuse to violate the constitutional argument that a permanent Chief Justice is
prohibition. imperative for the stability of the judicial system and
Intervenors Tan, Ubano, Boiser, Corvera, NULP, the political situation in the country when the election-
BAYAN et al., and Bello et al. oppose the insistence related questions reach the Court as false, because
thatValenzuela recognizes the possibility that the there is an existing law on filling the void brought
President may appoint the next Chief Justice if exigent about by a vacancy in the office of Chief Justice; that
circumstances warrant the appointment, because that the law is Section 12 of the Judiciary Act of 1948,
recognition is obiter dictum; and aver that the absence which has not been repealed byBatas Pambansa Blg.
of a Chief Justice or even an Associate Justice does not 129 or any other law; that a temporary or an acting
cause epic damage or absolute disruption or paralysis Chief Justice is not anathema to judicial
in the operations of the Judiciary. They insist that independence; that the designation of an actingChief
even without the successor of Chief Justice Puno being Justice is not only provided for by law, but is also
appointed by the incumbent President, the Court is dictated by practical necessity; that the practice was
allowed to intended to be enshrined in the 1987 Constitution, but
718 the Commissioners decided not to write it in the
718 SUPREME COURT REPORTS ANNOTATED
Constitution on account of the settled practice; that constitutes an election offense; that even an
the practice was followed under the 1987 Constitution, appointment of the next Chief Justice prior to the
when, in 1992, at the end of the term of Chief Justice election ban is fundamentally invalid and without
Marcelo B. Fernan, Associate Justice Andres Narvasa effect because there can be no appointment until a
assumed the position as Acting Chief Justice prior to vacancy occurs; and that the vacancy for the position
his official appointment as Chief Justice; that said can occur only by May 17, 2010.
filling up of a vacancy in the office of the Chief Justice Intervenor Boiser adds that De Castro’s prayer to
was acknowledged and even used by analogy in the compel the submission of nominees by the JBC to the
case of the vacancy of the Chairman of the Commission incumbent President is off-tangent because the
on Elections, per Brillantes v. Yorac, 192 SCRA 358; position of Chief Justice is still not vacant; that to
and that the history of the Supreme Court has shown speak of a list, much more a submission of such list,
that this rule of succession has been repeatedly before a vacancy occurs is glaringly premature; that
observed and has become a part of its tradition.719 the proposed advance appointment by the incumbent
VOL. 615, March 17, 2010 719 President of the next Chief Justice will be
De Castro vs. Judicial and Bar Council (JBC) unconstitutional; and that no list of nominees can be
submitted by the JBC if there is no vacancy.
Intervenors Ubano, Boiser, NUPL, Corvera, and All the intervenors-oppositors submit that Section
Lim maintain that the Omnibus Election 15, Article VII makes no distinction between the kinds
Code penalizes as an election offense the act of any of appointments made by the President; and that the
government official who appoints, promotes, or gives Court, in Valenzuela, ruled that the appointments by
any increase in salary or remuneration or privilege to the President of the two judges during the prohibition
any government official or employee during the period period were void.
of 45 days before a regular election; that the provision Intervenor WTLOP posits that Section 15, Article
covers all appointing heads, officials, and officers of a VII of the 1987 Constitution does not apply only to the
government office, agency or instrumentality, appointments in the Executive Department, but also to
including the President; that for the incumbent judicial appointments, contrary to the submission of
President to appoint the next Chief Justice upon the PHILCONSA; that Section 15 does not distinguish;
retirement of Chief Justice Puno, or during the period and that Valenzuela already
of the ban under the Omnibus Election Code, 720
720 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC) body—has no duty under the Constitution to resolve
interpreted the prohibition as applicable to judicial the question of whether the incumbent President can
appointments. appoint a Chief Justice during the period of
Intervenor WTLOP further posits that petitioner prohibition; that even if the JBC has already come up
Soriano’s contention that the power to appoint the with a short list, it still has to bow to the strict
Chief Justice is vested, not in the President, but in the limitations under Section 15, Article VII; that should
Supreme Court, is utterly baseless, because the Chief the JBC defer submission of the list, it is not
Justice is also a Member of the Supreme Court as arrogating unto itself a judicial function, but simply
contemplated under Section 9, Article VIII; and that, respecting the clear mandate of the Constitution; and
at any rate, the term “members” was interpreted that the application of the general rule in Section 15,
in Vargas v. Rillaroza (G.R. No. L-1612, February 26, Article VII to the Judiciary does not violate the
1948) to refer to the Chief Justice and the Associate principle of separation of powers, because said
Justices of the Supreme Court; that PHILCONSA’s provision is an exception.721
prayer that the Court pass a resolution declaring that VOL. 615, March 17, 2010 721
persons who manifest their interest as nominees, but De Castro vs. Judicial and Bar Council (JBC)
with conditions, shall not be considered nominees by
the JBC is diametrically opposed to the arguments in Oppositors NUPL, Corvera, Lim and BAYAN et
the body of its petition; that such glaring inconsistency al. state that the JBC’s act of nominating appointees
between the allegations in the body and the relief to the Supreme Court is purely ministerial and does
prayed for highlights the lack of merit of not involve the exercise of judgment; that there can be
PHILCONSA’s petition; that the role of the JBC no default on the part of the JBC in submitting the list
cannot be separated from the constitutional of nominees to the President, considering that the call
prohibition on the President; and that the Court must for applications only begins from the occurrence of the
direct the JBC to follow the rule of law, that is, to vacancy in the Supreme Court; and that the
submit the list of nominees only to the next duly commencement of the process of screening of
elected President after the period of the constitutional applicants to fill the vacancy in the office of the Chief
ban against midnight appointments has expired. Justice only begins from the retirement on May 17,
Oppositor IBP Davao del Sur opines that the JBC— 2010, for, prior to this date, there is no definite legal
because it is neither a judicial nor a quasi-judicial basis for any party to claim that the submission or
non-submission of the list of nominees to the President De Castro vs. Judicial and Bar Council (JBC)
by the JBC is a matter of right under law.
The main question presented in all the filings Black defines locus standi as “a right of appearance
herein—because it involves two seemingly conflicting in a court of justice on a given question.”41 In public or
provisions of the Constitution—imperatively demands constitutional litigations, the Court is often burdened
the attention and resolution of this Court, the only with the determination of the locus standi of the
authority that can resolve the question definitively petitioners due to the ever-present need to regulate the
and finally. The imperative demand rests on the ever- invocation of the intervention of the Court to correct
present need, first, to safeguard the independence, any official action or policy in order to avoid
reputation, and integrity of the entire Judiciary, obstructing the efficient functioning of public officials
particularly this Court, an institution that has been and offices involved in public service. It is required,
unnecessarily dragged into the harsh polemics brought therefore, that the petitioner must have a personal
on by the controversy; second, to settle once and for all stake in the outcome of the controversy, for, as
the doubt about an outgoing President’s power to indicated in Agan, Jr. v. Philippine International Air
appoint to the Judiciary within the long period Terminals Co., Inc.:42
starting two months before the presidential elections “The question on legal standing is whether such
until the end of the presidential term; and third, to set parties have “alleged such a personal stake in the
a definite guideline for the JBC to follow in the outcome of the controversy as to assure that concrete
discharge of its primary office of screening and adverseness which sharpens the presentation of
nominating qualified persons for appointment to the issues upon which the court so largely depends for
illumination of difficult constitutional
Judiciary.
questions.”43 Accordingly, it has been held that the
Thus, we resolve. interest of a person assailing the constitutionality of
a statute must be direct and personal. He must be
Ruling of the Court able to show, not only that the law or any
government act is invalid, but also that he sustained
Locus Standi of Petitioners or is in imminent danger of sustaining some direct
injury as a result of its enforcement, and not merely
The preliminary issue to be settled is whether or that he suffers thereby in some indefinite way. It
not the petitioners have locus standi.722 must appear that the person complaining has been or
722 SUPREME COURT REPORTS ANNOTATED is about to be denied some right or privilege to which
he is lawfully entitled or that he is about to be the cases had “transcendental importance.” Some
subjected to some burdens or penalties by reason of notable controversies whose petitioners did not pass
the statute or act complained of.”44 the direct injury test were allowed to be treated in the
_______________
same way as in Araneta v. Dinglasan.51 In the 1975
41 Black’s Law Dictionary, 941 (6th Ed. 1991). decision in Aquino v.
42 G.R. No. 155001, May 5, 2003, 402 SCRA 612. _______________
43 Citing Kilosbayan, Inc. v. Morato, G.R. No. 118910, July 17,
1995, 246 SCRA 540, 562-563, citing Baker v. Carr, 369 U.S. 186, 7 L. 45 65 Phil. 56.
Ed. 633 (1962). 46 G.R. No. 117, November 7, 1945 (Unreported).
44 Citing Kilosbayan, Inc. v. Morato, supra; Bayan v. Zamora, 47 G.R. No. 2947, January 11, 1959 (Unreported).
G.R. No. 138570, October 10, 2000; 342 SCRA 449, 478. 48 77 Phil. 1012 (1947).
723 49 110 Phil. 331 (1960).
VOL. 615, March 17, 2010 723 50 84 Phil. 368 (1949)
51 E.g., Chavez v. Public Estates Authority, G.R. No. 133250, July
De Castro vs. Judicial and Bar Council (JBC) 9, 2002, 384 SCRA 152 (in which the Court ruled that the
It is true that as early as in 1937, in People v. enforcement of the constitutional right to information and the
Vera,45 the Court adopted the direct injury test for equitable diffusion of natural resources are matters of transcendental
importance which clothe the petitioner with locus standi); Bagong
determining whether a petitioner in a public action Alyansang Makabayan v. Zamora, G.R. Nos. 138570, 138572,
had locus standi.There, the Court held that the person 138587, 138680, 138698, October 10, 2000, 342 SCRA 449 (in which
who would assail the validity of a statute must have “a the Court held that “given the transcendental importance of the
personal and substantial interest in the case such that issues involved, the Court may relax the standing requirements and
allow the suit to prosper despite the lack of direct injury to the
he has sustained, or will sustain direct injury as a parties seeking judicial review” of the Visiting Forces
result.” Vera was followed inCustodio v. President of Agreement);Lim v. Executive Secretary, G.R. No. 151445, April 11,
the Senate,46 Manila Race Horse Trainers’ Association 2002, 380 SCRA 739 (in which the Court, albeit conceding that the
petitioners might
v. De la Fuente,47 Anti-Chinese League of the
724
Philippines v. Felix,48 and Pascual v. Secretary of
724 SUPREME COURT REPORTS ANNOTATED
Public Works.49
De Castro vs. Judicial and Bar Council (JBC)
Yet, the Court has also held that the requirement
Commission on Elections,52 this Court decided to
oflocus standi, being a mere procedural technicality,
resolve the issues raised by the petition due to their
can be waived by the Court in the exercise of its
“far-reaching implications,” even if the petitioner had
discretion. For instance, in 1949, in Araneta v.
no personality to file the suit. The liberal approach
Dinglasan,50 the Court liberalized the approach when
of Aquino v. Commission on Elections has been was nonetheless clothed with the legal personality under the
disclosure provision of the Constitution to question it, considering its
adopted in several notable cases, permitting ordinary important role in the economic development of the country and the
citizens, legislators, and civic organizations to bring 725
their suits involving the constitutionality or validity of VOL. 615, March 17, 2010 725
laws, regulations, and rulings.53 De Castro vs. Judicial and Bar Council (JBC)
_______________
However, the assertion of a public right as a
not file suit in their capacity as taxpayers without a showing predicate for challenging a supposedly illegal or
thatBalikatan 02-01 involved the exercise of Congress’ taxing or unconstitutional executive or legislative action rests on
spending powers, reiterated Bagong Alyansang Makabayan v. the theory that the petitioner represents the public in
Zamora, declaringthat cases of transcendental importance must be
settled promptly and definitely and the standing requirements may general. Although such petitioner may not be as
be relaxed); and Osmeña v. Commission on Elections, G.R. No. adversely affected by the action complained against as
100318, 100308, 100417,100420, July 30, 1991, 199 SCRA 750 (in are others, it is enough that he sufficiently
which the Court held that where serious constitutional questions demonstrates in his petition that he is entitled to
were involved, the transcendental importance to the public of the
cases demanded that they be settled promptly and definitely, protection or relief from the Court in the vindication of
brushing aside technicalities of procedure). a public right.
Quite often, as here, the petitioner in a public action
52 L-No. 40004, January 31, 1975, 62 SCRA 275. sues as a citizen or taxpayer to gain locus standi. That
53 E.g., Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136
SCRA 27 (in which the Court held that it is sufficient that the is not surprising, for even if the issue may appear to
petitioner is a citizen interested in the execution of the law, because concern only the public in general, such capacities
the question is one of public duty and the enforcement of a public nonetheless equip the petitioner with adequate
right, and the people are the real party-in-interest); Legaspi v. Civil
interest to sue. In David v. Macapagal-Arroyo,54 the
Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530
(in which the Court declared that where an assertion of a public right Court aptly explains why:
is involved, the requirement of personal interest is satisfied by the “Case law in most jurisdictions now allows both “citizen”
mere fact that the petitioner is a citizen and is part of the general and “taxpayer” standing in public actions. The distinction
public which possesses the right);Kapatiran ng mga Naglilingkod sa was first laid down in Beauchamp v. Silk,55 where it was
Pamahalaan ng Pilipinas, Inc. v. Tan,L. No. 81311, June 30, 1988, held that the plaintiff in a taxpayer’s suit is in a different
163 SCRA 371 (in which the Court disregarded objections to
category from the plaintiff in a citizen’s suit. In the
taxpayers’ lack of personality to sue in determining the validity of the
VAT Law); Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA former, the plaintiff is affected by the expenditure of
264 (in which the Court pronounced that although no expenditure of public funds, while in the latter, he is but the mere
public funds was involved in the questioned contract, the petitioner instrument of the public concern.As held by the New
York Supreme Court in People ex rel Case v. Collins:56 “In taxpayers, with Soriano averring that he is affected by
matter of mere public right, however…the people are the continuing proceedings in the JBC, which involve
the real parties…It is at least the right, if not the “unnecessary, if not, illegal disbursement of public
duty, of every citizen to interfere and see that a funds.”59
public offence be properly pursued and pun-
_______________
PHILCONSA alleges itself to be a non-stock, non-
profit organization existing under the law for the
magnitude of the financial consideration involved, indicating that public purpose of defending, protecting, and preserving the
interest was definitely involved); and Association of Small Landowners Constitution and promoting its growth and flowering.
in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R. No. 78742, July
14, 1989, 175 SCRA 343 (in which the Court ruled that it had the It also alleges that the Court has recognized its legal
discretion to waive the requirement of locus standi in determining the standing to file cases on constitutional issues in
validity of the implementation of the Comprehensive Agrarian Reform several cases.60
Program, although the petitioners were not, strictly speaking, covered by
the definition of proper party). In A.M. No. 10-2-5-SC, Mendoza states that he is a
citizen of the Philippines, a member of the Philippine
54 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 Bar engaged in the active practice of law, and a former
SCRA 160.
55 275 Ky 91, 120 SW2d 765 (1938). Solicitor General, former Minister of Justice, former
56 19 Wend. 56 (1837). Member of the Interim Batasang Pambansa and the
726 Regular Batasang Pambansa, and former member of
726 SUPREME COURT REPORTS ANNOTATED the Faculty of the College of Law of the University of
De Castro vs. Judicial and Bar Council (JBC) the Philippines.
ished, and that a public grievance be remedied.” With _______________
respect to taxpayer’s suits, Terr v. Jordan57 held that “the
right of a citizen and a taxpayer to maintain 57 232 NC 48, 59 SE2d 359 (1950).
an action in courts to restrain the unlawful use of 58 Bold emphasis is in the original text.
59 Petition in G.R. No. 191032, p. 2.
public funds to his injury cannot be denied.”58 60 Petition in G.R. No. 191057, pp. 3-4; citing the cases
Petitioners De Castro (G.R. No. 191002), Soriano of PHILCONSA v. Gimenez, 15 SCRA 479 (1965); PHILCONSA v.
(G.R. No. 191032) and Peralta (G.R. No. 191149) all Mathay, 18 SCRA 300 (1966); PHILCONSA v. Enriquez, 235 SCRA
assert their right as citizens filing their petitions on 506 (1994); and Lambino v. COMELEC, 505 SCRA 160 (2006).
727
behalf of the public who are directly affected by the
VOL. 615, March 17, 2010 727
issue of the appointment of the next Chief Justice. De
De Castro vs. Judicial and Bar Council (JBC)
Castro and Soriano further claim standing as
everyone (including the petitioners), regardless of one’s
The petitioners in G.R. No. 191342 are the personal interest in life, because they
Governors of the Integrated Bar of the Philippines concern that great doubt about the authority of the
(IBP) for Southern Luzon and Eastern Visayas. They incumbent President to appoint not only the successor
allege that they have the legal standing to enjoin the of the retiring incumbent Chief Justice, but also others
submission of the list of nominees by the JBC to the who may serve in the Judiciary, which already suffers
President, for “[a]n adjudication of the proper from a far too great number of vacancies in the ranks
interpretation and application of the constitutional of trial judges throughout the country.
ban on midnight appointments with regard to In any event, the Court retains the broad discretion
respondent JBC’s function in submitting the list of to waive the requirement of legal standing in favor of
nominees is well within the concern of petitioners, who any petitioner when the matter involved has
are duty bound to ensure that obedience and respect transcendental impor-
for the Constitution is upheld, most especially by _______________
government offices, such as respondent JBC, who are
61 Petition in G.R. No. 191342, pp. 2-3.
specifically tasked to perform crucial functions in the 728
whole scheme of our democratic institution.” They 728 SUPREME COURT REPORTS ANNOTATED
further allege that, reposed in them as members of the De Castro vs. Judicial and Bar Council (JBC)
Bar, is a clear legal interest in the process of selecting tance, or otherwise requires a liberalization of the
the members of the Supreme Court, and in the requirement.62
selection of the Chief Justice, considering that the Yet, if any doubt still lingers about the locus
person appointed becomes a member of the body that standi of any petitioner, we dispel the doubt now in
has constitutional supervision and authority over them order to remove any obstacle or obstruction to the
and other members of the legal profession.61 resolution of the essential issue squarely presented
The Court rules that the petitioners have each herein. We are not to shirk from discharging our
demonstrated adequate interest in the outcome of the solemn duty by reason alone of an obstacle more
controversy as to vest them with the requisite locus technical than otherwise. In Agan, Jr. v. Philippine
standi.The issues before us are of transcendental International Air Terminals Co., Inc.,63 we pointed out:
importance to the people as a whole, and to the “Standing is a peculiar concept in constitutional law
petitioners in particular. Indeed, the issues affect because in some cases, suits are not brought by parties
who have been personally injured by the operation of a Justiciability
law or any other government act but by concerned
citizens, taxpayers or voters who actually sue in the Intervenor NUPL maintains that there is no actual
public interest.” But even if, strictly speaking, the case or controversy that is appropriate or ripe for
petitioners “are not covered by the definition, it is still adjudication, considering that although the selection
within the wide discretion of the Court to waive the process commenced by the JBC is going on, there is yet
requirement and so no final list of nominees; hence, there is no imminent
_______________ controversy as to whether such list must be submitted
to the incumbent President, or reserved for submission
62 See, for instance, Integrated Bar of the Philippines v. Zamora,
G.R. No. 141284, August 15, 2000, 338 SCRA 81 (where the
to the incoming President.
petitioner questioned the validity of the deployment and utilization of Intervenor Tan raises the lack of any actual
the Marines to assist the PNP in law enforcement, asserting that IBP justiciable controversy that is ripe for judicial
was the official organization of Filipino lawyers tasked with the determination, pointing out that petitioner De Castro
bounden duty to uphold the rule of law and the Constitution, but the
Court held that the IBP had not shown that it was so tasked: “In this
has not even shown that the JBC has already
case, a reading of the petition shows that the IBP has advanced completed its selection process and is now ready to
constitutional issues which deserve the attention of this Court in submit the list to the incumbent President; and that
view of their seriousness, novelty and weight as precedents. petitioner De Castro is merely presenting a
Moreover, because peace and order are under constant threat and
lawless violence occurs in increasing tempo, undoubtedly aggravated hypothetical scenario that is clearly not sufficient for
by the Mindanao insurgency problem, the legal controversy raised in the Court to exercise its power of judicial review.
the petition almost certainly will not go away. It will stare us in the Intervenors Corvera and Lim separately opine that
face again. It, therefore, behooves the Court to relax the rules on De Castro’s petition rests on an overbroad and vague
standing and to resolve the issue now, rather than later”, and went
on to resolve the issues because the petitioner advanced allegation of political tension, which is insufficient
constitutional issues that deserved the attention of the Court in view basis for the Court to exercise its power of judicial
of their seriousness, novelty, and weight as precedents). review.
63 Supra, note 42, p. 645.
Intervenor BAYAN et al. contend that the
729
VOL. 615, March 17, 2010 729
petitioners are seeking a mere advisory opinion on
what the JBC and the President should do, and are not
De Castro vs. Judicial and Bar Council (JBC)
invoking any issues that are justiciable in nature.
remove the impediment to its addressing and resolving
Intervenors Bello et al. submit that there exist no
the serious constitutional questions raised.”64
conflict of legal rights and no assertion of opposite
legal claims in any of the petitions; that PHILCONSA the prescribed rules; that the Mendoza petition does
does not allege any action taken by the JBC, but not allege that the JBC has performed a specific act
simply avers that the conditional manifestations of two susceptible to correction for being illegal or
Members of the Court, accented by the divided unconstitutional; and that the Mendoza petition asks
opinions and interpretations of legal experts, or the Court to issue an advisory ruling, not to exercise
associa- its power of supervision to correct a wrong act by the
_______________ JBC, but to declare the state of the law in the absence
of an actual case or controversy.
64 Id.
730 We hold that the petitions set forth an actual case
730 SUPREME COURT REPORTS ANNOTATED or controversy that is ripe for judicial determination.
De Castro vs. Judicial and Bar Council (JBC) The reality is that the JBC already commenced the
tions of lawyers and law students on the issues proceedings for the selection of the nominees to be
published in the daily newspapers are “matters of included in a short list to be submitted to the
paramount and transcendental importance to the President for consideration of which of them will
bench, bar and general public”; that PHILCONSA fails succeed Chief Justice Puno as the next Chief Justice.
not only to cite any legal duty or allege any failure to Although the position is not yet vacant, the fact that
perform the duty, but also to indicate what specific the JBC began the process of nomination pursuant to
action should be done by the JBC; that Mendoza does its rules and practices, although it has yet to decide
not even attempt to portray the matter as a whether to submit the list of nominees to the
controversy or conflict of rights, but, instead, prays incumbent outgoing President or to the next President,
that the Court should “rule for the guidance of” the makes the situation ripe for judicial determination,
JBC; that the fact that the Court supervises the JBC because the next steps are the public interview of the
does not automatically imply that the Court can rule candidates, the preparation of the short list of
on the issues presented in the Mendoza petition, candidates, and the “interview of constitutional
because supervision involves oversight, which means experts, as may be needed.”731
that the subordinate officer or body must first act, and VOL. 615, March 17, 2010 731
if such action is not in accordance with prescribed De Castro vs. Judicial and Bar Council (JBC)
rules, then, and only then, may the person exercising
oversight order the action to be redone to conform to
A part of the question to be reviewed by the Court is incumbent President is not so prohibited are only some
whether the JBC properly initiated the process, there of the real issues for determination. All such issues
being an insistence from some of the oppositors- establish the ripeness of the controversy, considering
intervenors that the JBC could only do so once the that for some the short list must be
vacancy has occurred (that is, after May 17, 2010). submitted before the vacancy actually occurs by May
Another part is, of course, whether the JBC may 17, 2010. The outcome will not be an abstraction, or a
resume its process until the short list is prepared, in merely hypothetical exercise. The resolution of the
view of the provision of Section 4(1), Article VIII, controversy will surely settle—with finality—the
which unqualifiedly requires the President to appoint nagging questions that are preventing the JBC from
one from the short list to fill the vacancy in the moving on with the process that it already began, or
Supreme Court (be it the Chief Justice or an Associate that are reasons persuading the JBC to desist from the
Justice) within 90 days from the occurrence of the rest of the process.732
vacancy. 732 SUPREME COURT REPORTS ANNOTATED
The ripeness of the controversy for judicial De Castro vs. Judicial and Bar Council (JBC)
determination may not be doubted. The challenges to
the authority of the JBC to open the process of We need not await the occurrence of the vacancy by
nomination and to continue the process until the May 17, 2010 in order for the principal issue to ripe for
submission of the list of nominees; the insistence of judicial determination by the Court. It is enough that
some of the petitioners to compel the JBC one alleges conduct arguably affected with a
through mandamus to submit the short list to the constitutional interest, but seemingly proscribed by
incumbent President; the counter-insistence of the the Constitution. A reasonable certainty of the
intervenors to prohibit the JBC from submitting the occurrence of the perceived threat to a constitutional
short list to the incumbent President on the ground interest is sufficient to afford a basis for bringing a
that said list should be submitted instead to the next challenge, provided the Court has sufficient facts
President; the strong position that the incumbent before it to enable it to intelligently adjudicate the
President is already prohibited under Section 15, issues.65 Herein, the facts are not in doubt, for only
Article VII from making any appointments, including legal issues remain.
those to the Judiciary, starting on May 10, 2010 until
June 30, 2010; and the contrary position that the Substantive Merits
I that the incumbent President can appoint the
Prohibition under Section 15, Article VII does successor of Chief Justice Puno upon his retirement on
not apply to appointments to fill a vacancy in May 17, 2010, on the ground that the prohibition
the Supreme Court or to other appointments to against presidential appointments under Section 15,
the Judiciary Article VII does not extend to appointments in the
Two constitutional provisions are seemingly in Judiciary.
conflict. The Court agrees with the submission.
The first, Section 15, Article VII (Executive First. The records of the deliberations of the
Department), provides: Constitutional Commission reveal that the framers
“Section 15. Two months immediately before the next devoted time to meticulously drafting, styling, and
presidential elections and up to the end of his term, a arranging the Constitution. Such meticulousness
President or Acting President shall not make indicates that the organization and arrangement of the
appointments, except temporary appointments to executive provisions of the Constitution were not arbitrarily or
positions when continued vacancies therein will prejudice
whimsically done by the framers, but purposely made
public service or endanger public safety.”
to reflect their intention and manifest their vision of
The other, Section 4 (1), Article VIII (Judicial
what the Constitution should contain.
Department), states:
The Constitution consists of 18 Articles, three of
“Section 4. (1). The Supreme Court shall be composed
of a Chief Justice and fourteen Associate Justices. It may which embody the allocation of the awesome powers of
sit en bancor in its discretion, in division of three, five, or government among the three great departments, the
seven Members. Any vacancy shall be filled within ninety Legislative (Article VI), the Executive (Article VII),
days from the occurrence thereof.” and the Judicial Departments (Article VIII). The
_______________ arrangement was a true recognition of the principle of
separation of powers that underlies the political
65 See Buckley v. Valeo, 424 U.S. 1, 113-118 (1976); Regional Rail
Reoganization Act Cases, 419 U.S. 102, 138-148 (1974). structure, as Constitutional Commissioner Adolfo S.
733 Azcuna (later a worthy member of the Court)
VOL. 615, March 17, 2010 733 explained in his sponsorship speech:
De Castro vs. Judicial and Bar Council (JBC) “We have in the political part of this Constitution opted
In the consolidated petitions, the petitioners, with for the separation of powers in government because we
believe that the only way to protect freedom and liberty is
the exception of Soriano, Tolentino and Inting, submit
to separate and divide the awesome powers of government.
Hence, we return to the separation of powers doctrine and have easily andsurely written the prohibition made
the legislative, executive and judicial departments.”66 explicit in Section 15, Article VII as being equally
_______________
applicable to the appointment of Members of the
66 Record of Proceedings and Debates of the Constitutional Supreme Court in Article VIII itself, most likely in
Commission, Vol. V., p. 912, October 12, 1998. Section 4 (1), Article VIII. That such specification was
734 not done only reveals that the prohibition against the
734 SUPREME COURT REPORTS ANNOTATED President or Acting President making appointments
De Castro vs. Judicial and Bar Council (JBC) within two months before the next presidential
As can be seen, Article VII is devoted to the elections and up to the end of the President’s or Acting
Executive Department, and, among others, it lists the President’s term does not refer to the Members of the
powers vested by the Constitution in the President. Supreme Court.
The presidential power of appointment is dealt with in Although Valenzuela67 came to hold that the
Sections 14, 15 and 16 of the Article. prohibition covered even judicial appointments, it
Article VIII is dedicated to the Judicial Department cannot be disputed that
and defines the duties and qualifications of Members _______________
of the Supreme Court, among others. Section 4(1) and
67 Supra, note 6, p. 426-427, stating:
Section 9 of this Article are the provisions specifically Considering the respective reasons for the time frames for filling
providing for the appointment of Supreme Court vacancies in the courts and the restriction on the President’s
Justices. In particular, Section 9 states that the 735
appointment of Supreme Court Justices can only be VOL. 615, March 17, 2010 735
made by the President upon the submission of a list of De Castro vs. Judicial and Bar Council (JBC)
at least three nominees by the JBC; Section 4(1) of the
Article mandates the President to fill the the Valenzuela dictum did not firmly rest on the
vacancy within 90 days from the occurrence of the deliberations of the Constitutional Commission.
vacancy. Thereby, the confirmation made to the JBC by then
Had the framers intended to extend the prohibition Senior Associate Justice Florenz D. Regalado of this
contained in Section 15, Article VII to the appointment Court, a former member of the Constitutional
of Members of the Supreme Court, they could have Commission, about the prohibition not being intended
explicitly done so. They could not have ignored the to apply to the appointments to the Judiciary, which
meticulous ordering of the provisions. They would
confirmation Valenzuela even expressly mentioned,
should prevail. V . Intent of the Constitutional Commission
Relevantly, Valenzuela adverted to the intent of the The journal of the Commission which drew up the
framers in the genesis of Section 4 (1), Article present Constitution discloses that the original proposal
VIII, viz.: was to have an eleven-member Supreme Court.
_______________ Commissioner Eulogio Lerum wanted to increase the
number of Justices to fifteen. He also wished to ensure that
power of appointment, it is this Court’s view that, as a general that number would not be reduced for any appreciable
proposition, in case of conflict, the former should yield to the latter. length of time (even only temporarily), and to this end
Surely, the prevention of vote-buying and similar evils outweighs the proposed that any vacancy “must be filled within two
need for avoiding delays in filling up of court vacancies or the
months from the date that the vacancy occurs.” His
disposition of some cases. Temporary vacancies can abide the period
of the ban which, incidentally and as earlier pointed out, comes to proposal to have a 15-member Court was not initially
exist only once in every six years. Moreover, those occurring in the adopted. Persisting however in his desire to make certain
lower courts can be filled temporarily by designation. But prohibited that the size of the Court would not be decreased for any
appointments are long-lasting and permanent in their effects. They substantial period as a result of vacancies, Lerum proposed
may, as earlier pointed out, in fact influence the results of elections the insertion in the provision (anent the Court’s
and, for that reason, their making is considered an election offense.
membership) of the same mandate that “IN CASE OF ANY
To the contention that may perhaps be asserted, that Sections 4
(1) and 9 of Article VIII should prevail over Section 15 of Article VII,
VACANCY, THE SAME SHALL BE FILLED WITHIN
because they may be considered later expressions of the people when TWO MONTHS FROM OCCURRENCE THEREOF.” He
they adopted the Constitution, it suffices to point out that the later agreed to suggestions to make the period three,
Constitution must be construed in its entirety as one, single, instead of two, months. As thus amended, the proposal was
instrument. approved. As it turned out, however, the Commission
To be sure, instances may be conceived of the imperative need for ultimately agreed on a fifteen-member Court. Thus it was
an appointment, during the period of the ban, not only in the
that the section fixing the composition of the
executive but also in the Supreme Court. This may be the case should
the membership of the court be so reduced that it will have no Supreme Court came to include a command to fill up
quorum or should the voting on a particularly important question any vacancy therein within 90 days from its
requiring expeditious resolution be evenly divided. Such a case, occurrence.
however, is covered by neither Section 15 of Article VII nor Section 4 In this connection, it may be pointed out that that
(1) and 9 of Article VIII. instruction that any “vacancy shall be filled within ninety
736
days” (in the last sentence of Section 4 (1) of Article VIII)
736 SUPREME COURT REPORTS ANNOTATED contrasts with the prohibition in Section 15, Article VII,
De Castro vs. Judicial and Bar Council (JBC) which is couched in stronger negative language—that “a
President or Acting President shall not make days from its occurrence,” which
appointments…” even Valenzuela conceded. The exchanges during
69

The commission later approved a proposal of deliberations of the Constitutional Commission on


Commissioner Hilario G. Davide, Jr. (now a Member of this October 8, 1986 further show that the filling of a
Court) to add to what is now Section 9 of Article VIII, the
vacancy in the Supreme Court within the 90-day
following paragraph: “WITH RESPECT TO LOWER
period was a truemandate for the President, viz.:
COURTS, THE PRESIDENT SHALL ISSUE THE
APPOINTMENT WITHIN NINETY DAYS FROM THE MR. DE CASTRO. I understand that our justices
SUBMISSION OF THE LIST” (of nominees by the Judicial now in the Supreme Court, together with the
and Bar Council to the President). Davide stated that his Chief Justice, are only 11.
purpose was to provide a “uniform rule” for lower courts. MR. CONCEPCION. Yes.
According to him, the 90-day period should be counted from MR. DE CASTRO. And the second sentence of
submission of the list of nominees to the President in view this subsection reads: “Any vacancy shall be
of the possibility that the President might reject the list filled within ninety days from the
submitted to him and the JBC thus need more time to occurrence thereof.”
submit a new one.737 MR. CONCEPCION. That is right.
VOL. 615, March 17, 2010 737 MR. DE CASTRO. Is this now a mandate to the
De Castro vs. Judicial and Bar Council (JBC) executive to fill the vacancy?
MR. CONCEPCION. That is right. That is borne
On the other hand, Section 15, Article VII—which in
out of the fact that in the past 30 years,
effect deprives the President of his appointing power “two
seldom has the Court had a complete
months immediately before the next presidential elections
up to the end of his term”—was approved without complement.70
discussion.”68 Moreover, the usage in Section 4(1), Article VIII of
However, the reference to the records of the the word shall—an imperative, operating to impose a
Constitutional Commission did not advance or support duty that
_______________
the result in Valenzuela. Far to the contrary, the
records disclosed the express intent of the framers to 68 Id., at pp. 422-423.
enshrine in the Constitution, upon the initiative of 69 Id., at p. 423.
Commissioner Eulogio Lerum, “a command [to the 70 Record of Proceedings and Debates of the Constitutional
Commission, Vol. V., pp. 632-633.
President] to fill up any vacancy therein within 90 738
738 SUPREME COURT REPORTS ANNOTATED provision was inserted for a definite reason. Often by
De Castro vs. Judicial and Bar Council (JBC) considering the enactment in its entirety, what appears to
may be enforced71—should not be disregarded. be on its face a conflict may be cleared up and the
provisions reconciled.
Thereby, Sections 4(1) imposes on the President
Consequently, that construction which will leave every
the imperative dutyto make an appointment of a word operative will be favored over one which leaves some
Member of the Supreme Court within 90 days from the word or provision meaningless because of inconsistency.
occurrence of the vacancy. The failure by the President But a word should not be given effect, if to do so gives the
to do so will be a clear disobedience to the statute a meaning contrary to the
Constitution. _______________
The 90-day limitation fixed in Section 4(1), Article
71 Dizon v. Encarnacion, G.R. No. L-18615, December 24, 1963, 9
VIII for the President to fill the vacancy in the SCRA 714.
Supreme Court was undoubtedly a special provision to 72 Crawford, Earl. T., The Construction of Statutes, Thomas Law
establish a definite mandate for the President as the Book Company, St. Louis, Missouri, 262-264 (1940).
739
appointing power, and cannot be defeated by mere
VOL. 615, March 17, 2010 739
judicial interpretation inValenzuela to the effect that
De Castro vs. Judicial and Bar Council (JBC)
Section 15, Article VII prevailed because it was
intent of the legislature. On the other hand, if full effect
“couched in stronger negative language.” Such
cannot be given to the words of a statute, they must be
interpretation even turned out to be conjectural, in made effective as far as possible. Nor should the provisions
light of the records of the Constitutional Commission’s of a statute which are inconsistent be harmonized at a
deliberations on Section 4 (1), Article VIII. sacrifice of the legislative intention. It may be that two
How Valenzuela justified its pronouncement and provisions are irreconcilable; if so, the one which expresses
result is hardly warranted. According to an authority the intent of the law-makers should control. And the
on statutory construction:72 arbitrary rule has been frequently announced that where
“xxx the court should seek to avoid any conflict in the there is an irreconcilable conflict between the different
provisions of the statute by endeavoring to harmonize and provisions of a statute, the provision last in order of position
reconcile every part so that each shall be effective. It is not will prevail, since it is the latest expression of the
easy to draft a statute, or any other writing for that matter, legislative will. Obviously, the rule is subject to deserved
which may not in some manner contain conflicting criticism. It is seldom applied, and probably then only
provisions. But what appears to the reader to be a conflict where an irreconcilable conflict exists between different
may not have seemed so to the drafter. Undoubtedly, each sections of the same act, and after all other means of
ascertaining the meaning of the legislature have been De Castro vs. Judicial and Bar Council (JBC)
exhausted. Where the conflict is between two statutes, more It will not do to merely distinguish Valenzuela from
may be said in favor of the rule’s application, largely these cases, for the result to be reached herein is
because of the principle of implied repeal.” entirely incompatible with
In this connection, PHILCONSA’s urging of a what Valenzuela decreed. Consequently,
revisit and a review of Valenzuela is timely and Valenzuela now deserves to be quickly sent to the
appropriate.Valenzuela arbitrarily ignored the express dustbin of the unworthy and forgettable.
intent of the Constitutional Commission to have We reverse Valenzuela.
Section 4 (1), Article VIII stand independently of any Second. Section 15, Article VII does not apply as
other provision, least of all one found in Article VII. It well to all other appointments in the Judiciary.
further ignored that the two provisions had no There is no question that one of the reasons
irreconcilable conflict, regardless of Section 15, Article underlying the adoption of Section 15 as part of Article
VII being couched in the negative. As judges, we are VII was to eliminate midnight appointments from
not to unduly interpret, and should not accept an being made by anoutgoing Chief Executive in the mold
interpretation that defeats the intent of the framers.73 of the appointments dealt with in the leading case
Consequently, prohibiting the incumbent President of Aytona v. Castillo.75 In fact, in Valenzuela, the Court
from appointing a Chief Justice on the premise that so observed, stating that:
Section 15, Article VII extends to appointments in the “xxx it appears that Section 15, Article VII is directed
Judiciary cannot be sustained. A misinterpretation against two types of appointments: (1) those made for
like Valenzuela should not be allowed to last after its buying votes and (2) those made for partisan
false premises have been exposed.74 considerations. The first refers to those appointments made
_______________ within the two months preceding a Presidential election
and are similar to those which are declared election offenses
73 Garcia v. Social Security Commission Legal and Collection,
in the Omnibus Election Code, viz.:
G.R. No. 170735, December 17, 2007, 540 SCRA 456, 472;
citing Escosura v. San Miguel Brewery, Inc., 4 SCRA 285, (1962). xxx
74 According to Arizona v. Rumsey, 467 U. S. 203, 212 (1984): The second type of appointments prohibited by Section
“Although adherence to precedent is not rigidly required in 15, Article VII consists of the so-called “midnight”
constitutional cases, any departure from the doctrine of stare appointments. InAytona v. Castillo, it was held that after
decisis de- the proclamation of Diosdado Macapagal as duly elected
740 President, President Carlos P. Garcia, who was defeated in
740 SUPREME COURT REPORTS ANNOTATED his bid for reelection, became no more than a “caretaker”
administrator whose duty was to “prepare for the orderly “few and so spaced as to afford some assurance of
transfer of authority to the incoming President.” Said the deliberate action and careful consideration of the
Court: need for the appointment and the appointee’s
“The filling up of vacancies in important qualifications,” can be made by the outgoing
positions, if few, and so spaced as to afford President. Accordingly, several appointments made by
some assurance of deliberate action and careful President Garcia, which were shown to have been well
consideration of the need for the appointment considered, were upheld.
and appointee’s qualifications may Section 15, Article VII has a broader scope than
_______________ theAytona ruling. It may not unreasonably be
deemed to contemplate not only “midnight”
mands special justification.” The special justification for the reversal
ofValenzuela lies in its intrinsic unsoundness.
appointments—those made obviously for partisan
reasons as shown by their number and the time of
75 No. L-19313, January 19, 1962, 4 SCRA 1. their making—but also appointments presumed
741 made for the purpose of influencing the outcome of
VOL. 615, March 17, 2010 741 the Presidential election.
De Castro vs. Judicial and Bar Council (JBC) On the other hand, the exception in the same Section 15
undoubtedly be permitted. But the issuance of of Article VII—allowing appointments to be made during
350 appointments in one night and the planned the period of the ban therein provided—is much narrower
induction of almost all of them in a few hours than that recognized in Aytona. The exception allows only
before the inauguration of the new President the making oftemporary appointments to executive positions
may, with some reason, be regarded by the when continued vacancies will prejudice public service or
latter as an abuse of Presidential prerogatives, endanger public safety. Obviously, the article greatly
the steps taken being apparently a mere restricts the appointing power of the President during the
partisan effort to fill all vacant positions period of the ban.
irrespective of fitness and other conditions, and Considering the respective reasons for the time frames
thereby to deprive the new administration of an for filling vacancies in the courts and the restriction on the
opportunity to make the corresponding President’s power of appointment, it is this Court’s view
appointments.” that, as a general proposition, in case of conflict, the former
As indicated, the Court recognized that there may well should yield to the latter. Surely, the prevention of vote-
be appointments to important positions which have to be buying and similar evils outweighs the
742
made even after the proclamation of the new
President. Such appointments, so long as they are 742 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC) axiomatic in statutory construction that the
need for avoiding delays in filling up of court vacancies or ascertainment of the purpose of the enactment is a
the disposition of some cases. Temporary vacancies can step in the process of ascertaining the intent or
abide the period of the ban which, incidentally and as _______________
earlier pointed out, comes to exist only once in every six
years. Moreover, those occurring in the lower courts can be 76 Supra, note 6, pp. 424-426; bold underscoring supplied for
emphasis.
filled temporarily by designation. But prohibited
77 Aytona v. Castillo, supra, note 74, pp. 8-10 (N.B. - In the time
appointments are long-lasting and permanent in their material to Aytona, there were judges of the Court of First Instance
effects. They may, as earlier pointed out, in fact influence who were appointed to districts that had no vacancies, because the
the results of elections and, for that reason, their making is incumbents had not qualified for other districts to which they had
considered an election offense.”76 been supposedly transferred or promoted; at any rate, the
Given the background and rationale for the appointments still required confirmation by the Commission on
Appointments).
prohibition in Section 15, Article VII, we have no doubt 743
that the Constitutional Commission confined the VOL. 615, March 17, 2010 743
prohibition to appointments made in the Executive De Castro vs. Judicial and Bar Council (JBC)
Department. The framers did not need to extend the
meaning of the enactment, because the reason for the
prohibition to appointments in the Judiciary, because
enactment must necessarily shed considerable light on
their establishment of the JBC and their subjecting
“the law of the statute,” i.e., the intent; hence, the
the nomination and screening of candidates for judicial
enactment should be construed with reference to its
positions to the unhurried and deliberate prior process
intended scope and purpose, and the court should seek
of the JBC ensured that there would no longer be
to carry out this purpose rather than to defeat it.78
midnight appointments to the Judiciary. If midnight
Also, the intervention of the JBC eliminates the
appointments in the mold ofAytona were made in
danger that appointments to the Judiciary can be
haste and with irregularities, or made by an outgoing
made for the purpose of buying votes in a coming
Chief Executive in the last days of his administration presidential election, or of satisfying partisan
out of a desire to subvert the policies of the incoming
considerations. The experience from the time of the
President or for partisanship,77 the appointments to
establishment of the JBC shows that even candidates
the Judiciary made after the establishment of the JBC
for judicial positions at any level backed by people
would not be suffering from such defects because of the
influential with the President could not always be
JBC’s prior processing of candidates. Indeed, it is
assured of being recommended for the consideration of
the President, because they first had to undergo the The fault of Valenzuela was that it accorded no
vetting of the JBC and pass muster there. Indeed, the weight and due consideration to the confirmation of
creation of the JBC was precisely intended to de- Justice Regalado. Valenzuela was weak, because it
politicize the Judiciary by doing away with the relied on interpretation to determine the intent of the
intervention of the Commission on Appointments. This framers rather than on the deliberations of the
insulating process was absent from Constitutional Commission. Much of the unfounded
theAytona midnight appointment. doubt about the President’s power to appoint during
Third. As earlier stated, the non-applicability of the period of prohibition in Section 15, Article VII
Section 15, Article VII to appointments in the could have been dispelled since its promulgation on
Judiciary was confirmed by then Senior Associate November 9, 1998, hadValenzuela properly
Justice Regalado to the JBC itself when it met on acknowledged and relied on the confirmation of a
March 9, 1998 to discuss the question raised by some distinguished member of the Constitutional
sectors about the “constitutionality of xxx Commission like Justice Regalado.
appointments” to the Court of Appeals in light of the Fourth. Of the 23 sections in Article VII, three (i.e.,
forthcoming presidential elections. He assured that “on Section 14, Section15, and Section 16) concern the
the basis of the (Constitutional) Commission’s records, appointing powers of the President.
the election ban had no application to appointments to Section 14 speaks of the power of
the Court of Appeals.”79 This confirmation the succeedingPresident to revoke appointments made
was accepted by the JBC, which then submitted to the by an Acting President,81 and evidently refers only to
President for consideration the nominations for the appointments in the Executive Department. It has no
eight vacancies in the Court of Appeals.80 application to appointments in the Judiciary,
because temporary or actingappointments can only
_______________ undermine the independence of the Judiciary due to
their being revocable at will.82 The letter and spirit of
78 Crawford, op. cit., supra, note 72, pp. 248-249.
79 Supra, note 6, p. 413. the Constitution safeguard that independence. Also,
80 Id. there is no law in the books that authorizes
744 therevocation of appointments in the Judiciary. Prior
744 SUPREME COURT REPORTS ANNOTATED to their mandatory retirement or resignation, judges of
De Castro vs. Judicial and Bar Council (JBC) the first and second level courts and the Justices of the
third level courts may only be removed for cause, but together with the other parts, and kept subservient to
the Members of the Supreme Court may be removed the general intent of the whole enactment.84 It is
only by impeachment. absurd to assume that the framers deliberately
Section 16 covers only the presidential situated Section 15 between Section 14 and Section 16,
appointments that require confirmation by the if they intended Section 15 to cover all kinds of
Commission on Appointments. presidential appointments. If that was their intention
_______________ in respect of appointments to the Judiciary, the
framers, if only to be clear, would have easily and
81 Section 14. Appointments extended by an Acting President
shall remain effective, unless revoked by the elected President within surely inserted a similar prohibition in Article VIII,
ninety days from his assumption or reassumption of office. most likely within Section 4 (1) thereof.
82 Cruz, I., Philippine Political Law, 253 (2002); also Rilloraza v. Fifth. To hold like the Court did in Valenzuela that
Vargas, 80 Phil. 297 (1948).
Section 15 extends to appointments to the Judiciary
745
VOL. 615, March 17, 2010 745 further undermines the intent of the Constitution of
De Castro vs. Judicial and Bar Council (JBC)
ensuring the independence of the Judicial Department
from the Executive and Legislative Departments. Such
Thereby, the Constitutional Commission restored
a holding will tie the Judiciary and the Supreme Court
the requirement of confirmation by the Commission on
to the fortunes or misfortunes of po-
Appointments after the requirement was removed _______________
from the 1973 Constitution. Yet, because of Section 9
of Article VIII, the restored requirement did not 83 Record of Proceedings and Debates of the Constitutional
include appointments to the Judiciary.83 Commission, Vol. V., p. 908, which indicates that in his sponsorship
speech delivered on October 12, 1986 on the floor of the
Section 14, Section 15, and Section 16 are obviously Constitutional Commission, Commissioner Teofisto Guingona
of the same character, in that they affect the power of explained that “[a]ppointments to the judiciary shall not be subject to
the President to appoint. The fact that Section 14 and confirmation by the Commission on Appointments.”
Section 16 refer only to appointments within the 84 Rodriguez, Statutory Construction, 171 (1999).
746
Executive Department renders conclusive that Section
746 SUPREME COURT REPORTS ANNOTATED
15 also applies only to the Executive Department. This
De Castro vs. Judicial and Bar Council (JBC)
conclusion is consistent with the rule that every part of
the statute must be interpreted with reference to the litical leaders vying for the Presidency in a
context, i.e. that every part must be considered presidential election. Consequently, the wisdom of
having the new President, instead of the current elections are held on May 8, the period of the
incumbent President, appoint the next Chief Justice is prohibition is 115 days. If such elections are held on
itself suspect, and cannot ensure judicial May 14, the period of the prohibition is 109 days.
independence, because the appointee can also become Either period of the prohibition is longer than the full
beholden to the appointing authority. In contrast, the mandatory 90-day period to fill the vacancy in the
appointment by the incumbent President does not run Supreme Court. The result is that there are at least 19
the same risk of compromising judicial independence, occasions (i.e., the difference between the shortest
precisely because her term will end by June 30, 2010. possible period of the ban of 109 days and the 90-day
Sixth. The argument has been raised to the effect mandatory period for appointments) in which the
that there will be no need for the incumbent President outgoing President would be in no position to comply
to appoint during the prohibition period the successor with the constitutional duty to fill up a vacancy in the
of Chief Justice Puno within the context of Section 4 Supreme Court. It is
(1), Article VIII, because anyway there will still be 747
about 45 days of the 90 days mandated in Section 4(1), VOL. 615, March 17, 2010 747
Article VIII remaining. De Castro vs. Judicial and Bar Council (JBC)
The argument is flawed, because it is focused only safe to assume that the framers of the Constitution
on the coming vacancy occurring from Chief Justice could not have intended such an absurdity. In fact, in
Puno’s retirement by May 17, 2010. It ignores the need their deliberations on the mandatory period for the
to apply Section 4(1) to every situation of a vacancy in appointment of Supreme Court Justices under Section
the Supreme Court. 4 (1), Article VIII, the framers neither discussed, nor
The argument also rests on the fallacious mentioned, nor referred to the ban against midnight
assumption that there will still be time remaining in appointments under Section 15, Article VII, or its
the 90-day period under Section 4(1), Article VIII. The effects on the 90-day period, or vice versa. They did not
fallacy is easily demonstrable, as the OSG has shown need to, because they never intended Section 15,
in its comment. Article VII to apply to a vacancy in the Supreme
Section 4 (3), Article VII requires the regular Court, or in any of the lower courts.
elections to be held on the second Monday of May, Seventh. As a matter of fact, in an extreme case, we
letting the elections fall on May 8, at the earliest, or can even raise a doubt on whether a JBC list is
May 14, at the latest. If the regular presidential necessary at all for the President—any President—to
appoint a Chief Justice if the appointee is to come from The Judiciary Act of 1948
the ranks of the sitting justices of the Supreme Court. The posture has been taken that no urgency exists
Sec. 9, Article VIII says: for the President to appoint the successor of Chief
“xxx. The Members of the Supreme Court xxx shall be Justice Puno, considering that the Judiciary Act of
appointed by the President from a list of at least three 1948 can still address the situation of having the next
nominees prepared by the Judicial and Bar Council for any President appoint the successor.
vacancy. Such appointments need no confirmation. Section 12 of the Judiciary Act of 1948 states:
xxx” “Section 12. Vacancy in Office of Chief Justice.—In
The provision clearly refers to an appointee coming case of a vacancy in the office of Chief Justice of the
into the Supreme Court from the outside, that is, a Supreme Court or of his inability to perform the duties and
non-member of the Court aspiring to become one. It powers of his office, they shall devolve upon the Associate
speaks of candidates for the Supreme Court, not of Justice who is first in precedence, until such disability is
those who are already members or sitting justices of removed, or another Chief Justice is appointed and duly
the Court, all of whom have previously been vetted by qualified. This provision shall apply to every Associate
the JBC. Justice who succeeds to the office of Chief Justice.”
Can the President, therefore, appoint any of the The provision calls for an Acting Chief Justice in
incumbent Justices of the Court as Chief Justice? the event of a vacancy in the office of the Chief Justice,
The question is not squarely before us at the or in the event that the Chief Justice is unable to
moment, but it should lend itself to a deeper analysis if perform his duties and powers. In either of such
and when circumstances permit. It should be a good circumstances, the duties and powers of the office of
issue for the proposed Constitutional Convention to the Chief Justice shall devolve upon the Associate
consider in the light of Senate President Juan Ponce Justice who is first in precedence until a new Chief
Enrile’s statement that the President Justice is appointed or until the disability is removed.
748 Notwithstanding that there is no pressing need to
748 SUPREME COURT REPORTS ANNOTATED dwell on this peripheral matter after the Court has
De Castro vs. Judicial and Bar Council (JBC) hereby resolved the question of consequence, we do not
can appoint the Chief Justice from among the sitting find it amiss to confront the matter now.
justices of the Court even without a JBC list. We cannot agree with the posture.
A review of Sections 4(1) and 9 of Article VIII shows
II that the Supreme Court is composed of a Chief Justice
and 14 Associate Justices, who all shall be appointed the Commission on Appointments, and the
by the President from a list of at least three nominees confirmation process might take longer than expected.
prepared by the The appointment of the next Chief Justice by the
749 incumbent President is preferable to having the
VOL. 615, March 17, 2010 749 Associate Justice who is first in precedence take over.
De Castro vs. Judicial and Bar Council (JBC) Under the Constitution, the heads of the Legislative
JBC for every vacancy, which appointments require no and Executive Departments are popularly elected, and
confirmation by the Commission on Appointments. whoever are elected and proclaimed at once become
With reference to the Chief Justice, he or she is the leaders of their respective Departments. However,
appointed by the President as Chief Justice, and the the lack of any appointed occupant of the office of Chief
appointment is never in an acting capacity. The Justice harms the independence of the Judiciary,
express reference to a Chief Justice abhors the idea because the Chief Justice is the head of the entire
that the framers contemplated an ActingChief Justice Judiciary. The Chief Justice performs functions
to head the membership of the Supreme Court. absolutely significant to the life of the nation. With the
Otherwise, they would have simply written so in the entire Supreme Court being the Presidential Electoral
Constitution. Consequently, to rely on Section 12 of Tribunal, the Chief Justice is the Chairman of the
the Judiciary Act of 1948 in order to forestall the Tribunal. There being no obstacle to the
imperative need to appoint the next Chief Justice 750
soonest is to defy the plain intent of the Constitution. 750 SUPREME COURT REPORTS ANNOTATED
For sure, the framers intended the position of Chief De Castro vs. Judicial and Bar Council (JBC)
Justice to be permanent, not one to be occupied in an appointment of the next Chief Justice, aside from its
acting or temporary capacity. In relation to the scheme being mandatory for the incumbent President to make
of things under the present Constitution, Section 12 of within the 90-day period from May 17, 2010, there is
the Judiciary Act of 1948 only responds to a rare no justification to insist that the successor of Chief
situation in which the new Chief Justice is not yet Justice Puno be appointed by the next President.
appointed, or in which the incumbent Chief Justice is Historically, under the present Constitution, there
unable to perform the duties and powers of the office. has been no wide gap between the retirement and the
It ought to be remembered, however, that it was resignation of an incumbent Chief Justice, on one
enacted because the Chief Justice appointed under the hand, and the appointment to and assumption of office
1935 Constitution was subject to the confirmation of of his successor, on the other hand. As summarized in
the comment of the OSG, the chronology of succession De Castro vs. Judicial and Bar Council (JBC)
is as follows:
1. When Chief Justice Claudio Teehankee retired on Mandamus shall issue when any tribunal,
April 18, 1988, Chief Justice Pedro Yap was appointed on corporation, board, officer or person unlawfully
the same day; neglects the performance of an act that the law
2. When Chief Justice Yap retired on July 1, 1988, specifically enjoins as a duty resulting from an office,
Chief Justice Marcelo Fernan was appointed on the same
trust, or station.86 It is proper when the act against
day;
3. When Chief Justice Fernan resigned on December 7,
which it is directed is one addressed to the discretion
1991, Chief Justice Andres Narvasa was appointed the of the tribunal or officer. Mandamus is not available to
following day, December 8, 1991; direct the exercise of a judgment or discretion in a
4. When Chief Justice Narvasa retired on November 29, particular way.87
1998, Chief Justice Hilario Davide, Jr. was sworn into office For mandamus to lie, the following requisites must
the following early morning of November 30, 1998; be complied with: (a) the plaintiff has a clear legal
5. When Chief Justice Davide retired on December 19, right to the act demanded; (b) it must be the duty of
2005, Chief Justice Artemio Panganiban was appointed the the defendant to perform the act, because it is
next day, December 20, 2005; and mandated by law; (c) the defendant unlawfully
6. When Chief Justice Panganiban retired on December neglects the performance of the duty enjoined by law;
6, 2006, Chief Justice Reynato S. Puno took his oath as
(d) the act to be performed is ministerial, not
Chief Justice at midnight of December 6, 2006.85
discretionary; and (e) there is no appeal or any other
III plain, speedy and adequate remedy in the ordinary
course of law.
Writ of mandamus does not lie against the Section 8(5) and Section 9, Article VIII, mandate
JBC the JBC to submit a list of at least three nominees to
May the JBC be compelled to submit the list of the President for every vacancy in the Judiciary:
nominees to the President? “Section 8. xxx
_______________ (5) The Council shall have the principal function of
recommending appointees to the Judiciary. xxx
85 Comment of the OSG, p. 37. Section 9. The Members of the Supreme Court and
751 judges of lower courts shall be appointed by the President
VOL. 615, March 17, 2010 751 from a list of at least three nominees prepared by the
Judicial and BarCouncil for every vacancy. Such for the President to make the appointment. For the
appointments need no confirmation. JBC to do so will be unconscionable on its part,
For the lower courts, the President shall issue the considering that it will
appointments within ninety days from the thereby effectively andillegally deprive the President of
submission of the list.”
the ample time granted under the Constitution to
However, Section 4(1) and Section 9, Article VIII,
reflect on the qualifications of the nominees named in
mandate the President to fill the vacancy in the the list of the JBC before making the appointment.
Supreme Court within 90 days from the occurrence of The duty of the JBC to submit a list of
the vacancy, and within 90 nominees beforethe start of the President’s mandatory
_______________
90-day period to appoint is ministerial, but its
86 Section 3, Rule 65, 1997 Rules of Civil Procedure. selection of the candidates whose names will be in the
87 JG Summit Holdings, Inc. v. Court of Appeals, G.R. No. list to be submitted to the President lies within the
124293, November 20, 2000, 345 SCRA 143.
discretion of the JBC. The object of the petitions
752
752 SUPREME COURT REPORTS ANNOTATED for mandamus herein should only refer to the duty to
De Castro vs. Judicial and Bar Council (JBC)
submit to the President the list of nominees for every
vacancy in the Judiciary, because in order to constitute
days from the submission of the list, in the case of the
unlawful neglect of duty, there must be an unjustified
lower courts. The 90-day period is directed at the
delay in performing that duty.88 For mandamusto lie
President, not at the JBC. Thus, the JBC should start
against the JBC, therefore, there should be an
the process of selecting the candidates to fill the
unexplained delay on its part in recommending
vacancy in the Supreme Court before the occurrence of
nominees to the Judiciary, that is, in submitting the
the vacancy.
list to the President.
Under the Constitution, it is mandatory for the JBC
The distinction between a ministerial act and a
to submit to the President the list of nominees to fill a
discretionary one has been delineated in the following
vacancy in the Supreme Court in order to enable the
manner:
President to appoint one of them within the 90-day _______________
period from the occurrence of the vacancy. The JBC
has no discretion to submit the list to the 88 Nery v. Gamolo, A.M. No. P-01-1508, February 7, 2003, 397
President after the vacancy occurs, because that SCRA 110, citing Musni v. Morales, 315 SCRA 85, 86 (1999).
753
shortens the 90-day period allowed by the Constitution
VOL. 615, March 17, 2010 753 In light of the foregoing disquisitions, the conclusion
De Castro vs. Judicial and Bar Council (JBC) is ineluctable that only the President can appoint the
Chief Justice. Hence, Soriano’s petition for prohibition
“The distinction between a ministerial and discretionary in G.R. No. 191032, which proposes to prevent the JBC
act is well delineated. A purely ministerial act or duty from intervening in the process of nominating the
is one which an officer or tribunal performs in a successor of Chief Justice Puno, lacks merit.
given state of facts, in a prescribed manner, in On the other hand, the petition for prohibition in
obedience to the mandate of a legal authority, G.R. No. 191342 is similarly devoid of merit. The
without regard to or the exercise of his own
challenge mounted against the composition of the JBC
judgment upon the propriety or impropriety of the
based on the allegedly unconstitutional allocation of a
act done. If the law imposes a duty upon a public
officer and gives him the right to decide how or when vote each to the ex officio members from the Senate
the duty shall be performed, such duty is and the House of Representatives, thereby prejudicing
discretionary and not ministerial. The duty is the chances of some candidates for nomi-
ministerial only when the discharge of the same _______________
requires neither the exercise of official discretion or
89 Espiridion v. Court of Appeals, G.R. No. 146933, June 8, 2006,
judgment.”89 490 SCRA 273.
Accordingly, we find no sufficient grounds to grant 754
the petitions for mandamus and to issue a writ 754 SUPREME COURT REPORTS ANNOTATED
of mandamusagainst the JBC. The actions for that De Castro vs. Judicial and Bar Council (JBC)
purpose are premature, because it is clear that the nation by raising the minimum number of votes
JBC still has until May 17, 2010, at the latest, within required in accordance with the rules of the JBC, is
which to submit the list of nominees to the President not based on the petitioners’ actual interest, because
to fill the vacancy created by the compulsory they have not alleged in their petition that they were
retirement of Chief Justice Puno. nominated to the JBC to fill some vacancies in the
Judiciary. Thus, the petitioners lacklocus standi on
IV that issue.
WHEREFORE, the Court:
Writ of prohibition does not lie against the
1. Dismisses the petitions
JBC
for certiorari and mandamusin G.R. No. 191002 and
G.R. No. 191149, and the petition for mandamus in Carpio-Morales, J., Please see Dissenting Opinion.
G.R. No. 191057 for being premature; Velasco, Jr., I join the separate opinion of Justice
2. Dismisses the petitions for prohibition in G.R. Nachura.
No. 191032 and G.R. No. 191342 for lack of merit; and Nachura, J., Please see Separate Opinion.
3. Grants the petition in A.M. No. 10-2-5-SC and, Brion, J., See my Separate Opinion.
accordingly, directs the Judicial and Bar Council: Peralta, J., In the result. I join the opinion of
(a) To resume its proceedings for the Justice Brion.
nomination of candidates to fill the vacancy to be Del Castillo, J., In the result. I share the view of
created by the compulsory retirement of Chief Justice Brion.
Justice Reynato S. Puno by May 17, 2010; Abad, J., Please see my Concurrence.
(b) To prepare the short list of nominees for Villarama, Jr., J., I certify that Justice Villarama
the position of Chief Justice; voted in favor of the Decision of Justice Bersamin—
(c) To submit to the incumbent President the Puno,C.J.
short list of nominees for the position of Chief Mendoza, J., In the result. I join Justice Brion in
Justice on or before May 17, 2010; and his Separate Opinion.
(d) To continue its proceedings for the DISSENTING OPINION
nomination of candidates to fill other vacancies in CARPIO-MORALES, J.:
the Judiciary and submit to the President the “Although the Chief Justice is primus inter pares, he
short list of nominees corresponding thereto in cannot legally decide a case on his own because of the
accordance with this decision. Court’s nature as a collegial body. Neither can the Chief
SO ORDERED. Justice, by himself, overturn the decision of the Court,
whether of a division or the en banc.”
Leonardo-De Castro and Perez, JJ., concur.
—Associate Justice Renato C. Corona in
Puno (C.J.), No part. JBC or respondent.
Complaint of Mr. Aurelio Indencia
Carpio, J., No Part, as Senior Associate Justice, I Arrienda
am involved either way.755 against Justice Puno, 499 Phil. 1, 14; 460
VOL. 615, March 17, 2010 755 SCRA 1, 15 (2005)
De Castro vs. Judicial and Bar Council (JBC) Primus inter pares. First among equals. The Latin
maxim indicates that a person is the most senior of a
Corona, J., No part. group of people sharing the same rank or office. The
phrase has been used to describe the status, condition latest, within which to submit to the President the list
or role of the prime minister in most parliamentary of nominees for the position of Chief Justice.
nations, the high-ranking prelate in sev- I DISSENT.
756 _______________
756 SUPREME COURT REPORTS ANNOTATED
1 Vide http://en.wikipedia.org/wiki/Primus_inter_pares (visited:
De Castro vs. Judicial and Bar Council (JBC)
March 10, 2010).
eral religious orders, and the chief justice in many 2 Feminine ablative of primus (first among her equals).
supreme courts around the world.1 3 Constitution, Art. VII, Sec. 15. Two months immediately before
The inclination to focus on the inter pares without the next presidential elections and up to the end of his term, a
President or Acting President shall not make
due emphasis on the primus/prima2 has spawned appointments, except temporary appointments to executive positions
contemporary discourse that revives the original tug- when continued vacancies therein will prejudice public service or
of-war between domination and parity, which impasse endanger public safety. (emphasis, italics and underscoring supplied)
4 358 Phil. 896; 298 SCRA 408 (1998).
the conceived maxim precisely intended to resolve.
757
In the present case, several arguments attempt to
VOL. 615, March 17, 2010 757
depict a mirage of doomsday scenarios arising from the
De Castro vs. Judicial and Bar Council (JBC)
impending vacancy of the primus in the Court as a
springboard for their plea to avert a supposed
Constitutional draftsmanship style is
undermining of the independence of the judiciary. In
the weakest aid in arriving at a con-
reality, the essential question boils down to the
stitutional construction
limitation on the appointing power of the
The first ratiocination adverts to the “organization
President.
and arrangement of the provisions of the Constitution”
The ponencia of Justice Bersamin holds that the
that was, as the ponencia declares, purposely made by
incumbent President can appoint the next Chief
the framers of the Constitution to “reflect their
Justice upon the retirement of Chief Justice Reynato
intention and manifest their vision” of the charter’s
S. Puno on May 17, 2010 since the prohibition during
contents.
election period3does not extend to appointments in the
It is unfortunate that the ponencia chiefly relies on
judiciary, thereby reversing In re appointments of Hon.
the trivialities of draftsmanship style in arriving at a
Valenzuela & Hon. Vallarta.4
constitutional construction. The petitioner in Anak
The ponencia additionally holds that the Judicial
Mindanao Party-List Group v. The Executive
and Bar Council (JBC) has until May 17, 2010, at the
Secretary5raised a similar argument, but the Court AMIN takes premium on the severed treatment of these
held: reform areas in marked provisions of the Constitution. It is
“AMIN goes on to proffer the concept of “ordering the a precept, however, that inferences drawn from title,
law” which, so it alleges, can be said of the chapter or section headings are entitled to very little
Constitution’s distinct treatment of these three areas, as weight. And so must reliance on sub-headings, or the
reflected in separate provisions in different parts of the lack thereof, to support a strained deduction be
Constitution. It argues that the Constitution did not intend given the weight of helium.
an over-arching concept of agrarian reform to encompass Secondary aids may be consulted to remove, not to create
the two other areas, and that how the law is ordered in a doubt. AMIN’s thesis unsettles, more than settles the order
certain way should not be undermined by mere executive of things in construing the Constitution. Its
orders in the guise of administrative efficiency. interpretation fails to clearly establish that the so-
The Court is not persuaded. called “ordering” or arrangement of provisions in the
The interplay of various areas of reform in the promotion Constitution was consciously adopted to imply a
of social justice is not something implausible or unlikely. signification in terms of government hierarchy from
Their interlocking nature cuts across labels and works where a constitutional mandate can per se be
against a rigid pigeonholing of executive tasks among the derived or asserted. It fails to demonstrate that the
members of the President’s official family. Notably, the “ordering” or layout was not simply a matter of style
Constitution inhibited from identifying and in constitutional drafting but one of intention in
compartmentalizing the composition of the Cabinet. In government structuring. With its inherent ambiguity,
vesting ex- the proposed interpretation cannot be made a basis for
_______________ declaring a law or governmental act
unconstitutional.”6 (emphasis and underscoring supplied)
5 G.R. No. 166052, August 29, 2007, 531 SCRA 583, where the Concededly, the allocation of three Articles in the
petitioner assailed the placing of the National Commission on Indigenous
Peoples as an attached agency of the Department of Agrarian Reform on Constitution devoted to the respective dynamics of the
the ground that, inter alia, policy and program coordination between three Departments was deliberately adopted by the
allegedly conceptually different government agencies is unconstitutional. framers to allocate the vast powers of government
758
758 SUPREME COURT REPORTS ANNOTATED
among the three Departments in recognition of the
principle of separation of powers.
De Castro vs. Judicial and Bar Council (JBC)
The equation, however, does not end there. Such
ecutive power in one person rather than in a plural
executive, the evident intention was to invest the power kind of formulation detaches itself from the
holder with energy. concomitant system of checks and balances. Section
sequencing alone of Sections 14, 15 and 16 of Article Heeding Aytona’s admonition, the Constitutional
VII, as explained in the fourth ratiocination, does Commission (ConCom) saw it fit to provide for a
not suffice to signify functional structuring. comprehensive ban on midnight appointments, finding
That the power of judicial appointment was lodged that the establishment of the JBC is not enough to
in the President is a recognized measure of limitation safeguard or insulate judicial appointments from
on the power of the judiciary, which measure, however, politicization. The ConCom deliberations reveal:
is counterbalanced MR. GUINGONA: Madam President.
_______________ THE PRESIDENT: Commissioner Guingona is
recognized.
6 Id., at pp. 601-603.
759 MR. GUINGONA: Would the distinguished
VOL. 615, March 17, 2010 759 proponent accept an amendment to his
De Castro vs. Judicial and Bar Council (JBC) amendment to limit this prohibition to members
by the election ban due to the need to insulate the of collegiate courts? The judges of the lower
judiciary from the political climate of presidential courts perhaps would not have the same category
elections. To abandon this interplay of checks and or the same standing as the others mentioned
balances on the mere inference that the establishment here.
of the JBC could de-politicize the process of judicial MR. DAVIDE: Pursuant to the post amendment, we
appointments lacks constitutional mooring. already included here government-owned or
The establishment of the JBC is not controlled corporations or their subsidiaries
sufficient to curtail the evils of mid- which are not even very sensitive positions. So
night appointments in the judiciary with more reason that the prohibition should
The constitutional prohibition in Section 15 apply to appointments in these bodies.
_______________
found its roots in the case of Aytona v.
Castillo,7 where among the “midnight” or “last 7 No. L-19313, January 19, 1962, 4 SCRA 1, 8.
minute” appointments voided to abort the abuse of 760
presidential prerogatives or partisan efforts to fill 760 SUPREME COURT REPORTS ANNOTATED
vacant positions were one in the Supreme Court and De Castro vs. Judicial and Bar Council (JBC)
two in the Court of Appeals. THE PRESIDENT: Does the Committee accept?
FR. BERNAS: What is common among these FR. BERNAS: We leave the matter to the body for a
people—Ministers, Deputy Ministers, heads of vote.8(capitalization and emphasis supplied)
bureaus or offices—is that they are under the The clear intent of the framers is thus for the ban
control of the President. on midnight appointments to apply to the judiciary.
MR. GUINGONA: That is correct. The succeeding interpellations9 suggest no departure
FR. BERNAS: Whereas, the other offices the from this intent.
Commissioner mentioned are independent _______________
offices.
8 RECORD OF THE 1986 CONSTITUTIONAL COMMISSION, Vol. 2, July
MR. DAVIDE: The idea of the proposal is that about 31, 1986, RCC No. 44 (CD Format).
the end of the term of the President, he may 9 Id. Following were the deliberations concerning the prohibition
prolong his rule indirectly by appointing people onnepotism, wherein the deletion of the word “judiciary” was
reflected in the final text of Section 13, Article VII of the
to these sensitive positions, like the commissions, Constitution:
the Ombudsman, the JUDICIARY, so he could 761
perpetuate himself in power even beyond his VOL. 615, March 17, 2010 761
term of office; therefore foreclosing the right of De Castro vs. Judicial and Bar Council (JBC)
his successor to make appointments to these For almost half a century, the seeds of Aytona, as
positions. We should realize that the term of the nurtured and broadened by the Constitution, have
President is six years and under what we had grown into an estab-
voted on, there is no reelection for him. Yet he _______________
can continue to rule the country through
appointments made about the end of his term to MR. TINGSON: Madam President, may I just ask
these sensitive positions. one
question of the proponent?
FR. BERNAS: At any rate, there are other checks as THE PRESIDENT: Commissioner Tingson is recognized.
far as the appointment of those officers is MR. TINGSON: Even though the members of the
concerned. President’s family are related to him,
shall we bar the men of probity,
MR. DAVIDE: Only insofar as the Commission on
honesty and specialized technical
Appointments is concerned for offices which knowledge from being appointed?
would require consent, and the Judicial Bar MR. DAVIDE: That is precisely the core or the meat
Council insofar as the judiciary is concerned. and the heart of the prohibition. In
effect, it is just extending it to these
sensitive positions that I have MR. DAVIDE: Is the Commissioner proposing that
mentioned. as an amendment to my amendment?
MR. TINGSON: But in a sense would that not be MR. TINGSON: I would like to.
counterproductive? MR. DAVIDE: In the sense that the
MR. DAVIDE: If that is the thinking of the Commissioner’s
Commissioner, he should rather amendment is to delete the entire
propose for the deletion of the entire sentence?
sentence since that is really its effect. MR. TINGSON: Is that the Commissioner’s thinking
MR. TINGSON: Will the Commissioner join me if I do? also?
MR. DAVIDE:No. As a matter of fact, I am expanding MR. DAVIDE: No, I am entirely for the opposite.
the prohibition. But if the MR. TINGSON: Then, I am not insisting anymore.
Commissioner’s position is that we MR. DAVIDE: If the Commissioner is introducing it
might be prohibiting these capable as an amendment, I am sorry, I
men who are relatives of the President, have to reject his proposal.
then the deletion would be proper, THE PRESIDENT: So, let us now proceed to the
which I am not in favor of. amendment of Commissioner Davide.
MR. TINGSON: Madam President, we have already MR. GUINGONA: Madam President, may I just offer
limited the presidency to one term, one
predicated on the fact that he will now more amendment to the distinguished
become a statesman rather than a proponent? After the word
partisan politician. Then he will be “JUDICIARY,” we insert: EXCEPT
acting for the good of our country; that JUDGES OF THE METROPOLITAN
is, we base that philosophy with that TRIAL COURTS.
predicate. So I am just wondering why MR. DAVIDE: To avoid any further complication, I
we should not utilize these men who, would agree to delete “JUDICIARY.”
according to Commis- MR. GUINGONA: Thank you.
762 MR. DAVIDE: So, on line 5, the only amendment
762 SUPREME COURT REPORTS ANNOTATED would consist of the following: after
the word “as,” insert MEMBERS OF
De Castro vs. Judicial and Bar Council (JBC) THE CONSTITUTIONAL
lished doctrine that has weathered legal storms COMMISSIONS OR THE OFFICE
likeValenzuela. OF THE OMBUDSMAN.
_______________ THE PRESIDENT: Does the Committee prefer to throw
this to the body?
sioner Uka, happen to have MR. REGALADO: We prefer that we submit it to the
committed a crime of being related to body.
the President. VOTING
763 THE PRESIDENT: Those in favor of this proposed
VOL. 615, March 17, 2010 763 amendment of Commissioner Davide
on page 9, line 5, to include these two
De Castro vs. Judicial and Bar Council (JBC) offices: the constitutional
commissions and the office of the
The second ratiocination in the ponencia could Ombudsman, please raise their hand.
(Several Members raised their hand.)
thus not remove an added constitutional safeguard by
Those against the proposed amendment will please raise their
pretending to have examined and concluded that the hand. (Few Members raised their hand.)
establishment of the JBC had eliminated all The results show 24 votes in favor and 9 against; the amendment
encompassing forms of political maneuverings during is approved.
MR. ROMULO: Madam President, we are almost at the end of
elections. Otherwise, reading into the Constitution our long journey. I ask for continued patience on the part of everyone.
such conclusion so crucial to the scheme of checks and We are now on Section 20. We have consolidated all the amendments
balances, which is neither written nor tackled, for presentation by one person; and that is, Commissioner Sarmiento.
undermines the noticeable silence or restraint Will the Chair recognize him please? (emphasis, italics and
underscoring supplied).
exercised by the framers themselves from making a 764
definitive analysis. 764 SUPREME COURT REPORTS ANNOTATED
To illustrate, the instance given in the fifth De Castro vs. Judicial and Bar Council (JBC)
ratiocination that having the new President appoint
appointing President is up for re-election in the
the next Chief Justice cannot ensure judicial
peculiar situation contemplated by Section 4, Article
independence because the appointee can also become
VII of the Constitution.
beholden to the appointing authority bears an
All rules of statutory construction re-
inconsistent stance. It does not admit or recognize that
volt against the interpretation arrived
the mechanism of removal by impeachment eliminates
at by the ponencia
the evils of political indebtedness. In any event, that
It is simplistic and unreliable for the ponencia to
level of reasoning overlooks the risk of compromising
contend that had the framers intended to extend the
judicial independence when the outgoing President
ban in Article VII to appointments in the judiciary,
faces the Court in the charges that may be
they would have easily and surely written so in Article
subsequently filed against her/him, and when the
_______________
VIII, for it backlashes the question that had the
framers intended to exclude judicial appointments in
Article VIII from the prohibition in Article VII, they
would have easily and surely written so in the thing or consequence implies the exclusion of all
excepting proviso in Article VII. others.10 There is no clear circumstance that would
Taking into account how the framers painstakingly indicate that the enumeration in the exception was not
rummaged through various sections of the intended to be exclusive. Moreover, the fact that
Constitution and came up with only one exception with Section 15 was couched in negative language
the need to specify the executive department, it insults reinforces the exclusivity of the exception.
the collective intelligence and diligence of the ConCom “Under the rules of statutory construction, exceptions, as
to postulate that it intended to exclude the judiciary a general rule, should be strictly but reasonably construed;
but missed out on that one. they extend only so far as their language fairly warrants,
To hold that the ban on midnight appointments and all doubts should be resolved in favor of the general
provisions rather than the exception. Where a general rule is
applies only to executive positions, and not to
established by statute with exceptions, the court will not
vacancies in the judiciary and independent
curtail the former nor add to the latter by
constitutional bodies, is to make the prohibition implication.”11 (italics in the original; underscoring supplied)
practically useless. It bears noting that Section 15, The proclivity to innovate legal concepts is enticing.
Article VII of the Constitution already allows the Lest the basic rule be forgotten, it helps to once more
President, by way of exception, to make temporary recite that when the law is clear, it is not susceptible
appointments in the Executive Department during the to interpretation and must be applied regardless of
prohibited period. Under this view, there is virtually who may be affected, even if the law may be harsh or
no restriction on the President’s power of appointment onerous.12
during the prohibited period. In its third ratiocination,
The general rule is clear since the prohibition the ponencia faultsValenzuela for not according weight
applies to ALL kinds of midnight appointments. The and due consideration to the opinion of Justice Florenz
Constitution made no distinction. Ubi lex non Regalado. It accords high regard to the opinion
distinguit nec nos distinguere debemos.765 expressed by Justice Regalado as a former ConCom
VOL. 615, March 17, 2010 765 Member, to the exception of the opinion of all others
De Castro vs. Judicial and Bar Council (JBC) similarly situated.
It bears noting that the Court had spoken in one
The exception is likewise clear. Expressio unius et voice inValenzuela. The ponencia should not hastily
exclusio alterius. The express mention of one person,
reverse, on the sole basis of Justice Regalado’s opinion, terms of the Constitution when the meaning is clear.
the Court’s unani- Debates in the constitutional convention “are of value as
_______________ showing the views of the individual members, and as
indicating the reasons for their votes, but they give us no
10 The Iloilo City Zoning Board of Adjustment & Appeals v. light as to the views of the large majority who did not talk,
Gegato-Abecia Funeral Homes, Inc., 462 Phil. 803, 815; 417 SCRA much less of the mass of our fellow citizens whose votes at
337, 345 (2003).
the polls gave that instrument the force of fundamental
11 Samson v. Court of Appeals, No. L-43182, November 25, 1986,
145 SCRA 654, 659. law. We think it safer to construe the constitution from
12 Pascual v. Pascual-Bautista, G.R. No. 84240, March 25, 1992, what appears upon its face.” The proper interpretation
207 SCRA 561, 568. therefore depends more on how it was understood by the
766 people adopting it than in the framers’ understanding
766 SUPREME COURT REPORTS ANNOTATED thereof.”13 (underscoring supplied)
De Castro vs. Judicial and Bar Council (JBC) The clear import of Section 15 of Article VII is
mous en banc decision penned by Chief Justice Andres readily apparent. The people may not be of the same
Narvasa, and concurred in by, inter alia, Associate caliber as Justice Regalado, but they simply could not
Justices who later became Chief Justices—Hilario read into Section 15 something that is not there. Casus
Davide, Jr., Artemio Panganiban and Reynato Puno. omissus pro omisso habendus est.
The line of reasoning is specious. If that is the case _______________
and for accuracy’s sake, we might as well reconvene all 13 Francisco, Jr. v. The House of Representatives, 460 Phil. 830,
ConCom members and put the matter to a vote among 887; 415 SCRA 44, 128-129 (2003), citing Civil Liberties Union v.
them. Executive Secretary, G.R. No. 83896, February 22, 1991, 194 SCRA
Providentially, jurisprudence is replete with 317, 337-338.
767
guiding principles to ascertain the true meaning
VOL. 615, March 17, 2010 767
of the Constitution when the provisions as
De Castro vs. Judicial and Bar Council (JBC)
written appear unclear and the proceedings as
recorded provide little help:
“While it is permissible in this jurisdiction to consult the What complicates the ponencia is its great
debates and proceedings of the constitutional convention in preoccupation with Section 15 of Article VII,
order to arrive at the reason and purpose of the resulting particularly its fixation with sentences or phrases that
Constitution, resort thereto may be had only when other are neither written nor referred to therein. Verba legis
guides fail as said proceedings are powerless to vary the non est recedendum, index animi sermo est. There
should be no departure from the words of the statute, 14 CONSTITUTION, Art. VIII, Sec. 4 (1). The Supreme Court shall
be composed of a Chief Justice and fourteen Associate Justices. It
for speech is the index of intention. may sit en banc or in its discretion, in division of three, five, or seven
IN FINE, all rules of statutory construction members. Any vacancy shall be filled within ninety days from the
virtually revolt against the interpretation arrived at by occurrence thereof.(emphasis and underscoring supplied)
theponencia. 768
The 90-day period to fill a vacancy in 768 SUPREME COURT REPORTS ANNOTATED
the Supreme Court is suspended during De Castro vs. Judicial and Bar Council (JBC)
the ban on midnight appointments dent to do so will be a clear disobedience to the
Although practically there is no constitutional crisis Constitution.”15
or conflict involved upon the retirement of the The ponencia quotes certain records of the ConCom
incumbent Chief Justice, the ponencia illustrates the deliberations which, however, only support the view
inapplicability of the 90-day mandate to every that the number of Justices should “not be reduced for
situation of vacancy in the Supreme Court (i.e., the 19- any appreciable length of time” and it is a “mandate to
day vacuum articulated in thesixth ratiocination) if the executive to fill the vacancy”. Notably, there is no
only to buttress its thesis that judicial appointment is citation of any debate on how the framers reckoned or
an exception to the midnight appointments ban. The determined an appreciable length of time of 90 days, in
contemplated situation, however, supports the idea which case a delay of one day could already bring
that the 90-day period is suspended during the about the evils it purports to avoid and spell a culpable
effectivity of the ban. violation of the Constitution. On the contrary, that the
I submit that the more important and less addition of one month to the original proposal of 60
complicated question is whether the 90-day period in days was approved without controversy16 ineluctably
Section 4(1) of Article VIII14 runs during the period of shows that the intent was not to strictly impose an
prohibition in Section 15 of Article VII. inflexible timeframe.
In response to that question, the ponencia declares Respecting the rationale for suspending the 90-day
that it is the President’s “imperative duty to make an period, in cases where there is physical or legal
appointment of a Member of the Supreme Court within impossibility of compliance with the duty to fill the
90 days from the occurrence of the vacancy [and that vacancy within the said period, the fulfillment of the
t]he failure by the Presi- obligation is released because the law cannot exact
_______________ compliance with what is impossible.
In the present case, there can only arise a legal This view differs from Valenzuela in that it does not
impossibility when the JBC list is submitted or the implement Section 15 of Article VII so as to breach
vacancy occurred during the appointments ban and the Section 4(1) of Article VIII. Instead of disregarding the
90-day period would expire before the end of the 90-day period in the observance of the ban on midnight
appointments ban, in which case the fresh 90-day appointments, the more logical reconciliation of the
period should start to run at noon of June 30. This was two subject provisions is to consider the ban as having
the factual antecedent respecting the trial court judges the effect of suspending the duty to make the
involved in Valenzuela. There also arises a legal appointment within 90 days from the occurrence of the
impossibility when the list is submitted or the vacancy vacancy. Otherwise stated, since there is a ban, then
occurred prior to the ban and no appointment was there is no duty to appoint as the power to appoint
made before the ban starts, rendering the lapse of the does not even exist. Accordingly, the 90-day period is
90-day period within the period of the ban, in which suspended once the ban sets in and begins or continues
case the remaining period should resume to run at to run only upon the expiration of the ban.
noon of June 30. The outgoing President would be One situation which could result in physical
released from non-fulfillment of the constitutional impossibility is the inability of the JBC to constitute
obligation, and the duty devolves upon the new a quorum for some reasons beyond their control, as
President. that depicted by Justice Arturo Brion in his Separate
_______________ Opinion, in which case the 90-day period could lapse
without fulfilling the constitutional obligation.
15 Decision, p. 37.
16 Infra note 18. Another such circumstance which could frustrate
769 theponencia’s depiction of the inflexibility of the period
VOL. 615, March 17, 2010 769 is a “no-takers” situation where, for some reason, there
De Castro vs. Judicial and Bar Council (JBC) are nowilling qualified nominees to become a Member
of the Court.17 Some might find this possibility remote,
Considering also that Section 15 of Article VII is an but then again, the situa-
express limitation on the President’s power of _______________
appointment, the running of the 90-day period is 17 There is no problem in the case of lower courts since the 90-
deemed suspendedduring the period of the ban which day period starts from the submission of the list to the President.
takes effect only once every six years. Parenthetically, over and above the alleged level of importance and
urgency between the Court and the lower courts, the lack of
applicants for judicial posts in the province is a practical reason why the whole appointment process. For the ponencia, the
the 90-day period for lower courts is reckoned from the submission of
the JBC list. Otherwise, one could just imagine the countless
filling of the vacancy only involves the President, and
constitutional violations incurred by the President. the JBC was not considered when the period was
770 increased from 60 days to 90 days. The sense of the
770 SUPREME COURT REPORTS ANNOTATED Concom is the exact opposite.19
De Castro vs. Judicial and Bar Council (JBC) The flaw in the reasoning is made more evident
tion at hand or the “absurdity”18 of a 19-day when the vacancy occurs by virtue of death of a
overlapping vacuum may have also been perceived to member of the Court. In that instance, the JBC could
be rare. never anticipate the vacancy,
The seventh ratiocination is admittedly a non- _______________
issue. Suffice it to state that the Constitution is clear 18 Vide Decision, p. 45.
that the appointment must come “from a list x x x 19 RECORD OF THE 1986 CONSTITUTIONAL COMMISSION, Vol. 1, July
prepared by the Judicial and Bar Council.” 14, 1986, RCC No. 29 (CD Format. Commissioner Romulo stated that
The Supreme Court can function “[t]he sense of the Committee is that 60 days is awfully short and
that the [Judicial and Bar] Council, as well as the President, may
effectively during the midnight ap- have difficulties with that.”
pointments ban without an ap- 771
pointed Chief Justice VOL. 615, March 17, 2010 771
The ponencia also holds that the JBC has until May De Castro vs. Judicial and Bar Council (JBC)
17, 2010, at the latest, within which to submit to the and could never submit a list to the President before
President the list of nominees for the position of Chief the 90-day period.
Justice. It declares that the JBC should start the Sustaining the view means20 that in case the
process of selecting the candidates to fill the vacancy President appoints as Chief Justice a sitting member
in the Supreme Court before the occurrence of the of the Court, from a JBC list which includes, for
vacancy, explaining that the 90-day period in the instance, incumbent justices and “outsiders,” the JBC
proviso, “Any vacancy shall be filled within ninety must forthwith submit a list of nominees for the post
days from the occurrence thereof,” is addressed to the left vacant by the sitting member-now new Chief
President, not to the JBC. Justice. This thus calls for the JBC, in anticipation, to
Such interpretation is absurd as it takes the also commence and conclude another nomination
application and nomination stages in isolation from process to fill the vacancy, andsimultaneously submit a
list of nominees for such vacancy, together with the list De Castro vs. Judicial and Bar Council (JBC)
of nominees for the position of Chief Justice. If the dence to be an internal matter.
23

President appoints an “outsider” like Sandiganbayan The express allowance of a 90-day period of vacancy
Justice Edilberto Sandoval as Chief Justice, however, rebuts any policy argument on the necessity to avoid a
the JBC’s toil and time in the second nomination vacuum of even a single day in the position of an
process are put to waste. appointed Chief Justice.
It is ironic for the ponencia to state on the one hand As a member of the Court, I strongly take
that the President would be deprived of ample time to exception to the ponencia’s implication that the
reflect on the qualifications of the nominees, and to Court cannot function without a sitting Chief
show on the other hand that the President has, in Justice.
recent history, filled the vacancy in the position of To begin with, judicial power is vested in one
Chief Justice in one or two days. Supreme Court24 and not in its individual members,
It is ironic for the ponencia to recognize that the much less in the Chief Justice alone. Notably, after
President may need as much as 90 days of reflection in Chief Justice Puno retires, the Court will have 14
appointing a member of the Court, and yet abhor the members left, which is more than sufficient to
idea of an acting Chief Justice in the interregnum as constitute a quorum.
provided for by law,21 confirmed by tradition,22 and The fundamental principle in the system of laws
settled by jurispru- recognizes that there is only one Supreme Court from
_______________ whose decisions all other courts are required to take
20 In which case the Court’s complement remains incomplete
their bearings. While most of the Court’s work is
with still 14 members. performed by its three divisions, the Court remains
21 Republic Act No. 296 (Judiciary Act of 1948), Section 12 states one court—single, unitary, complete and supreme.
that in case of a vacancy in the office of Chief Justice, the Associate Flowing from this is the fact that, while individual
Justice who is first in precedence may act as Chief Justice until one
is appointed and duly qualified.
justices may dissent or only partially concur, when the
22 Since the time of Chief Justice Cayetano Arellano, this rule of Court states what the law is, it speaks with only one
succession has been observed throughout the Court’s history voice.25
whenever the position of Chief Justice is temporarily vacant for any The Court, as a collegial body, operates on a “one
reason. VideRevised copy of Special Order No. 826 (March 16, 2010)
772
member, one vote” basis, whether it sits en banc or in
772 SUPREME COURT REPORTS ANNOTATED divisions. The competence, probity and independence
of the Court en banc, or those of the Court’s Division to I am deeply impressed by the very well
which the Chief Justice belongs, have never depended written ponenciaof Justice Lucas P. Bersamin.
on whether the member voting However, I am unable to concur in all of his
_______________ conclusions. Instead, I vote to dismiss all the petitions
because they have utterly failed to present a
issued by Chief Justice Reynato S. Puno who goes on wellness and
sabbatical leave from March 18-30, 2010 designating Senior justiciable controversy.
Associate Justice Antonio T. Carpio as acting Chief Justice effective
March 18, 2010 until Chief Justice Puno reports back to work. The Antecedents
23 Cf. Brillantes, Jr. v. Yorac, G.R. No. 93867, December 18,
In recent weeks, two potential scenarios have
1990, 192 SCRA 358.
24 CONSTITUTION, Art. VIII, Sec. 1.
gripped the public mind. The first is the specter of the
failure of our first ever automated election which has
25 Complaint of Mr. Aurelio Indencia Arrienda against Justice
Puno, 499 Phil. 1, 14-15; 460 SCRA 1, 16 (2005). evoked numerous doomsday predictions. The second is
773 the possibility of the appointment by President Gloria
VOL. 615, March 17, 2010 773 Macapagal Arroyo of the Chief Justice of the Supreme
De Castro vs. Judicial and Bar Council (JBC) Court—after the compulsory retirement of incumbent
as Chief Justice is merely an acting Chief Justice or a Chief Justice Reynato S. Puno on May 17, 2010.
duly appointed one. _______________
IN LIGHT OF THE FOREGOING, I vote to hold,
1 Chief Justice Reynato S. Puno in Atty. Oliver O. Lozano and
for the guidance of the Judicial and Bar Council, that Atty. Evangeline J. Lozano-Endriano v. Speaker Prospero C.
the incumbent President is constitutionally proscribed Nograles, Representative, Majority, House of Representatives; Louis
from appointing the successor of Chief Justice Reynato “Barok” C. Biraogo v. Speaker Prospero C. Nograles, Speaker of the
S. Puno upon his retirement on May 17, 2010 until the House of Representatives, Congress of the Philippines, G.R. Nos.
187883 & 187910, June 16, 2009, 589 SCRA 356.
ban ends at 12:00 noon of June 30, 2010. 774
774 SUPREME COURT REPORTS ANNOTATED
SEPARATE OPINION
De Castro vs. Judicial and Bar Council (JBC)
NACHURA, J.: This has generated frenzied debates in media, in
“No amount of exigency can make this Court various lawyers’ assemblies, in the academe, and in
exercise a power where it is not proper.”1 coffee shops. It has even spawned a number of rallies
and demonstrations by civil society groups and by self- appoint the Members of the Supreme Court within
styled constitutional experts. ninety days from the occurrence of a vacancy, thus—
It does not matter that these two situations are Sec. 4(1). The Supreme Court shall be composed of a
merely possibilities, that they are conjectural and Chief Justice and fourteen Associate Justices. It may sit en
speculative at this moment in time. They have, banc or, in its
_______________
nonetheless, captured the public imagination, and
have ushered an open season for unfettered discussion 2 Emphasis supplied.
and for dire prognostication. 775
Not unexpectedly, the controversy posed by the VOL. 615, March 17, 2010 775
second scenario—involving concerns closest to home— De Castro vs. Judicial and Bar Council (JBC)
has arrived in this Court through various petitions and discretion, in divisions of three, five, or seven
interventions. Members. Any vacancy shall be filled within ninety
The core issue is whether the sitting President of days from the occurrence thereof.3
the Philippines, Gloria Macapagal Arroyo, can validly in relation to Article VIII, Section 9, which states
appoint the Chief Justice of the Supreme Court when that—
“Sec. 9. The Members of the Supreme Court and
the incumbent Chief Justice, Reynato S. Puno,
judges of lower courts shall be appointed by the President
compulsorily retires on May 17, 2010, in light of two
from a list of at least three nominees prepared by the
apparently conflicting provisions of the Constitution. Judicial and Bar Council for every vacancy. Such
Article VII, Section 15, provides a constitutional appointments need no confirmation. Any vacancy shall be
limitation on the President’s power of filled within ninety days from the occurrence thereof.
appointment, viz.: For the lower courts, the President shall issue the
“Sec. 15. Two months immediately before the appointments within ninety days from the submission of
next presidential elections and up to the end of his the list.
term, a President or Acting President shall not make The perceived conflict was resolved in
appointments, except temporary appointments to administrative matter, In Re Appointments Dated
executive positions when continued vacancies therein will March 30, 1998 of Hon. Mateo A. Valenzuela and Hon.
prejudice public service or endanger public safety.2
Placido B. Vallarta as Judges of the Regional Trial
On the other hand, Article VIII, Section 4(1)
Court of Branch 62, Bago City and of Branch 24,
contains an express mandate for the President to
Cabanatuan City, respectively.4 Therein, the Court was
confronted with the question of whether the
appointments of the concerned RTC judges, issued candidates; publish the names of candidates; accept
within two months before the presidential election in comments on or opposition to the applications; conduct
1998, were valid. The Court answered that, in the public interviews of candidates; and prepare the shortlist of
given situation, Article VII, Section 15, has primacy candidates.
As to the time to submit this shortlist to the proper
over Article VIII, Section 4(1), because the former was
appointing authority, in the light of the Constitution,
“couched in stronger negative language.” Accordingly,
existing laws and jurisprudence, the JBC welcomes and will
the appointments were nullified. consider all views on the matter.”5
However, Valenzuela’s applicability to the present On January 20, 2010, the JBC formally announced
controversy is challenged by most of herein petitioners. the opening, for application or recommendation, of the
The petitions were filed following certain acts of the position of Chief Justice of this Court, thus—
Judicial and Bar Council (JBC) related to the “The Judicial and Bar Council (JBC) announces the
constitutional procedure for the appointment of opening for application or recommendation, of the position
Supreme Court justices, specifically in the matter of of CHIEF JUSTICE OF THE SUPREME COURT, which
the appointment of Chief Justice Puno’s successor. On will be vacated on 17 May 2010 upon the retirement of the
January 18, 2010, the JBC passed a Resolution which incumbent Chief Justice, HON. REYNATO S. PUNO.
relevantly reads: Applications or recommendations for this position must
_______________ be submitted not later than 4 February 2010 (Thursday) to
the JBC Secretariat. x x x.”6
3 Emphasis supplied. In its February 8, 2010 meeting, the JBC decided to
4 A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.
776
proceed with the process of announcing to the public
776 SUPREME COURT REPORTS ANNOTATED the names of the candidates for the position. Included
De Castro vs. Judicial and Bar Council (JBC)
in the list of applicants are: (1) Brion, Arturo D.; (2)
Carpio, Antonio T.; (3) Corona, Renato C.; (4) Carpio
“The JBC, in its en banc meeting of January 18, 2010,
Morales, Conchita; (5) Leonardo-de Castro, Teresita J.;
unanimously agreed to start the process of filling up the and (6) Sandoval, Edilberto G.7
_______________
position of Chief Justice to be vacated on May 17, 2010
upon the retirement of the incumbent Chief Justice 5 http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf (visited:
Honorable Reynato S. Puno. March 11, 2010).
It will publish the opening of the position for 6http://jbc.judiciary.gov.ph/announcements/jbc_announce_2009/ja
applications or recommendations; deliberate on the list of n.22’10.pdf (visited: March 11, 2010).
7 Comment of the JBC, p. 6. Amador Tolentino, Jr., in G.R. No. 191342, asks this
777
Court to enjoin and restrain the JBC from submitting
VOL. 615, March 17, 2010 777
the list of nominees for judiciary positions, including
De Castro vs. Judicial and Bar Council (JBC) that of Chief Justice, to the incumbent President
These developments, having already engendered during the period covered in Article VII, Section 15 of
near-hysterical debates, impelled a number of the Constitution.
petitioners to file suit. However, obviously hedging In a cleverly crafted petition which he denominated
against the possibility that the cases would be an administrative matter, former Solicitor General
disallowed on the ground of prematurity, petitioners Estelito P. Mendoza filed A.M. No. 10-2-5-SC,
came to Court using different procedural vehicles. imploring this Court to rule, for the guidance of the
In G.R. No. 191002, petitioner Arturo de Castro JBC, whether the constitutional prohibition in Article
entreats the Court to issue a writ of mandamus to VII, Section 15, applies to positions in the judiciary
compel the JBC to send the list of nominees for Chief and whether the incumbent President may appoint the
Justice to the incumbent President when the position successor of Chief Justice Puno upon the latter’s
becomes vacant upon the retirement of Chief Justice retirement.778
Puno on May 17, 2010. 778 SUPREME COURT REPORTS ANNOTATED
The Philippine Constitution Association De Castro vs. Judicial and Bar Council (JBC)
(PHILCONSA) and John Peralta, petitioners in G.R.
Nos. 191057 and 191149, respectively, plead for the Notably, although the petitions sport different
same relief. appellations (for mandamus, or prohibition, or even as
In G.R. No. 191032, Jaime Soriano seeks the an administrative matter), they (except the Soriano
issuance by the Court of a writ prohibiting the JBC petition) share a common bottom line issue, i.e., a
from continuing with its proceedings, particularly the definitive ruling on whether, in light of the perceived
screening of applicants for Chief Justice, based on the conflict between Article VII, Section 15, and Article
hypothesis that the authority to appoint the Chief VIII, Section 4(1), the incumbent President can validly
Justice pertains exclusively to the Supreme Court. He appoint a Chief Justice after Chief Justice Puno retires
posits that it is the Court that must commence its own on May 17, 2010.
internal proceeding to select the successor of Chief
Justice Puno.
Thus, the Court consolidated the petitions and VOL. 615, March 17, 2010 779
required the JBC and the Office of the Solicitor De Castro vs. Judicial and Bar Council (JBC)
General (OSG) to file their respective comments. tion in Article VII, Section 15, of the Constitution does
Significantly, the JBC, in its February 25, 2010 not apply to appointments in the Supreme Court.
Comment, stated: Meanwhile, several motions for intervention with
11. The next stage of the process which will be the oppositions-in-intervention were received by the Court.
public interview of the candidates, and the Oppositors-Intervenors Antonio Gregorio III, Peter
preparation of the shortlist of candidates have yet to Irving Corvera, Walden Bello, Loretta Ann Rosales,
be undertaken by the JBC as of this date, including
and National Union of Peoples’ Lawyers uniformly
the interview of the constitutional experts, as may be
needed.
contend in their pleadings that the consolidated
Likewise, the JBC has yet to take a position on petitions should be dismissed outright, because
when to submit the shortlist to the proper appointing of the absence of an actual case or controversy
authority, in light of Section 4(1), Article VIII of the ripe for judicial adjudication and because of
Constitution, which provides that vacancy in the petitioners’ lack of legal standing to institute the
Supreme Court shall be filled within ninety (90) days cases.
from the occurrence thereof, Section 15, Article VIII Oppositor-Intervenor Mitchell John Boiser posits,
of the Constitution concerning the ban on among others, that the petitions for mandamus
Presidential appointments “two (2) months arepremature because there is yet no final list of
immediately before the next presidential elections nominees and the position of Chief Justice is not yet
and up to the end of his term” and Section 261(g),
vacant.
Article XXII of the Omnibus Election Code of the
Philippines.”8
Oppositors-Intervenors Yolanda Quisumbing-
On the other hand, the OSG, in its Comment dated Javellana, Belleza Alojado Demaisip, Teresita
February 26, 2010, took the position that the Gandionco-Oledan, Ma. Verena Kasilag-Villanueva,
incumbent President of the Philippines can appoint Marilyn Sta. Romana, Leonila de Jesus, and
the successor of Chief Justice Puno when he retires on Guinevere de Leon contend, among others, that the
May 17, 2010, because the prohibi- incumbent President is prohibited from making
_______________ appointments within the period prescribed in Article
VII, Section 15; that the next President will still have
8 Italics supplied. ample time to appoint a Chief Justice when Chief
779
Justice Puno retires on May 17, 2010 before the 90-day decree conclusive in nature, as distinguished from an
period for appointment mandated in Article VIII, opinion advising what the law would be upon a
Section 4(1) expires; and that in the interim, the duties hypothetical state of facts.10 The rationale for this
of the Chief Justice can be exercised by the most senior requirement is to prevent the courts through
of the incumbent Supreme Court justices. avoidance of premature adjudication from entangling
themselves in abstract disagreements, and for us to be
My Position satisfied that the case does not present a hypothetical
injury or a claim contingent upon some event that has
After careful perusal of the pleadings and not and indeed may never transpire.11
painstaking study of the applicable law and Thus, justiciability requires (1) that there be an
jurisprudence, I earnestly believe that the consolidated actual controversy between or among the parties to the
petitions should be dismissed, because they do not dispute; (2) that the interests of the parties be adverse;
raise an actual case or controversy ripe for (3) that the matter in controversy be capable of being
judicial determination.780 adjudicated by judicial power; and (4) that the
780 SUPREME COURT REPORTS ANNOTATED determination of the controversy will result in
De Castro vs. Judicial and Bar Council (JBC) practical relief to the complainant.12
_______________
As an essential ingredient for the exercise of the
9 Congressman Enrique T. Garcia of the 2nd District of Bataan v.
power of judicial review, an actual case or
The Executive Secretary, The Secretary of the Department of Energy,
controversyinvolves a conflict of legal rights, an Caltex Philippines, Inc., Petron Corporation, and Pilipinas Shell
assertion of opposite legal claims susceptible to judicial Corporation, G.R. No. 157584, April 2, 2009, 583 SCRA 119.
resolution.9 The controversy must be justiciable— 10Information Technology Foundation of the Philippines v.
Commission on Elections, G.R. No. 159139, June 15, 2005, 460 SCRA
definite and concrete—touching on the legal relations
291, 312-313.
of parties having adverse legal interests. In other 11 Office of the Governor v. Select Committee of Inquiry, 271
words, the pleadings must show an active antagonistic Conn. 540, 570, 858 A.2d 709 (2004).
assertion of a legal right, on one hand, and a denial 12 Astoria Federal Mortgage Corporation v. Matschke, 111 Conn.
App. 462, 959 A.2d 652 (2008).
thereof, on the other; that is, the case must concern a 781
real and not a merely theoretical question or issue. VOL. 615, March 17, 2010 781
There ought to be an actual and substantial De Castro vs. Judicial and Bar Council (JBC)
controversy admitting of specific relief through a
By these standards, the consolidated petitions do Sec. 3. Petition for mandamus.—When any tribunal,
corporation, board, officer or person unlawfully neglects the
not present a justiciable controversy because of the performance of an act which the law specifically enjoins as a duty
absence of clashing legal rights. The JBC has merely resulting from an office, trust, or station, or unlawfully excludes
started the selection process by accepting applications another from the use and enjoyment of a right or office to which such
and nominations for the position of Chief Justice. This other is entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law, the person aggrieved thereby
is only the initial stage of the procedure for may file a verified petition in the proper court, alleging the facts with
appointment of a Chief Justice. By the JBC’s own certainty and praying that judgment be rendered commanding the
admission, it has yet to undertake the public interview respondent, immediately or at some other time to be specified by the
of the applicants; it has yet to prepare the shortlist court, to do the act required to be done to protect the rights of the
petitioner, and to pay
and to decide whether it needs to interview 782
constitutional experts. 782 SUPREME COURT REPORTS ANNOTATED
Arturo de Castro and John Peralta justify the De Castro vs. Judicial and Bar Council (JBC)
propriety of the filing of their respective petitions submit its list, if it is already in existence, to the
for certiorari andmandamus by a common incumbent President. Mandamus is proper only to
thread: that the JBC has deferred its decision as compel the performance, when refused, of a
to whom to submit the list of nominees.13 They are ministerial duty.15 The mandamus petition therefore
then asking the Court to compel the JBC to has no leg to stand on as it presents no actual case ripe
submit the list to the incumbent President. for judicial determination.
De Castro’s and Peralta’s submission tends to PHILCONSA, for its part, contends that two
mislead the Court. It is clear from the narrated facts applicants for the post, Justices Carpio and Carpio
that there is yet no list to submit. The JBC is still in Morales, manifested their interest in their nomination
the process of screening applicants for the position. on the condition that the same will be submitted to the
Since there is no list to be submitted, there can be no next President. According to PHILCONSA, this fact
deferment of its submission. De Castro and Peralta “has created a dilemma/quandary to respondent JBC
have not shown or even alleged that the JBC has whether to exclude [from] or include [in the list] the
refused or has been unlawfully neglecting14 to names of said two Senior Justices.”16 It then prays for
_______________
this Court to rule on the issue.
13 De Castro petition, p. 5; and Peralta petition, p. 1. PHILCONSA, like de Castro and Peralta, is not
14 Section 3 of Rule 65 pertinently provides that: completely truthful. From its comment, it appears
that, as early as February 10, 2010, the JBC had that a writ of prohibition is issued to command a
already included the two justices, despite their respondent to desist from further proceeding in the
conditional acceptance of their nominations, in the list action or matter specified.18 Likewise, without a
of applicants for the post. There is no quandary to shortlist, there is nothing that this Court can mandate
speak of. the JBC to submit to the President.
To justify their petitions for prohibition, Jaime As to the petition filed by Estelito Mendoza, while it
Soriano and Amador Tolentino, Jr. allege that the JBC is captioned as an administrative matter, the same is
has already started the screening process for Chief in the nature of a petition for declaratory relief.
Justice.17 Thus, they claim that the Court can now Mendoza pleads that this Court interpret two
resolve the constitutional question and issue the apparently conflicting provisions of the Constitution—
writ prohibiting the JBC from submitting the list Article VII, Section 15 and Article VIII, Section 4(1).
of nominees to the incumbent President. Petitioner Mendoza specifically prays for such a ruling
As earlier mentioned, absent a shortlist of nominees “for the guidance of the [JBC],” a relief evidently in
for Chief Justice prepared by the JBC, there is yet the nature of a declaratory judgment.
nothing that the Court can prohibit the JBC Settled is the rule that petitions for declaratory
from submitting to the incumbent President. The relief are outside the jurisdiction of this
JBC has not even intimated concretely that it will Court.19 Moreover, the Court
perform the act sought to be prohibited— _______________
_______________
18 Section 2 of Rule 65 provides that:
the damages sustained by the petitioner by reason of the wrongful Sec. 2. Petition for prohibition.—When the proceedings of any
acts of the respondent. tribunal, corporation, board, officer or person, whether exercising
judicial, quasi-judicial or ministerial functions, are without or in
15 Pefianco v. Moral, 379 Phil. 468, 479; 322 SCRA 439 (2000). excess of its or his jurisdiction, or with grave abuse of discretion
16 PHILCONSA petition, p. 5. amounting to lack or excess of jurisdiction, and there is no appeal or
17 Soriano petition, p. 4; and Tolentino petition, p. 2. any other plain, speedy, and adequate remedy in the ordinary course
783 of law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that
VOL. 615, March 17, 2010 783 judgment be rendered commanding the respondent to desist from
De Castro vs. Judicial and Bar Council (JBC) further proceedings in the action or matter specified therein, or
submitting a list to the incumbent President. The JBC otherwise granting such incidental reliefs as law and justice may
require.
merely started the screening process. Let it be noted
19 Article VIII, Section 5 of the Constitution does not include incumbent President will do if such a shortlist is
petitions for declaratory relief among those within the original
jurisdiction of the Supreme Court. Section 1 of Rule 63 further
transmitted to her. For us to do so would be to engage
provides that: in conjecture and to undertake a purely hypothetical
Sec. 1. Who may file petition.—Any person interested under a exercise.
deed, will, contract or other written instrument, or whose rights are Thus, the situation calling for the application
affected by a statute, executive order or regulation, ordinance, or any
other governmental regulation may, before breach or violation
of either of the conflicting constitutional
784 provisions will arise only when still other
784 SUPREME COURT REPORTS ANNOTATED contingent events occur. What if the JBC does not
De Castro vs. Judicial and Bar Council (JBC) finish the screening process during the subject period?
does not sit to adjudicate mere academic What if the President does not make the appointment?
questions to satisfy scholarly interest, however Verily, these consolidated petitions involve “uncertain
intellectually challenging.20 While Mendoza and the contingent future events that may not occur as
other petitioners espouse worthy causes, they have anticipated, or indeed may not occur at all,” similar to
presented before this Court issues which are still the
_______________
subject tounforeseen possibilities. In other words, the
issues they raised are hypothetical and unripe for thereof, bring an action in the appropriate Regional Trial Court
judicial determination. to determine any question of construction or validity arising, and for
At this point, several contingent events are still a declaration of his rights or duties, thereunder.
20 Albay Electric Cooperative, Inc., Edgardo A. San Pablo, and
about to unfold. The JBC, after it has screened the Evan Calleja v. Hon. Rafael P. Santelices, in his capacity as the
applicants, may decide to submit the shortlist of Presiding Judge of the Regional Trial Court of Legazpi City, Branch
nominees either before or after the retirement of Chief No. 2, and Mayon International Hotel, Inc., G.R. No. 132540, April
Justice Puno. If it decides to submit the list after May 16, 2009, 585 SCRA 103.
785
17, 2010, it may opt to transmit said list of nominees
VOL. 615, March 17, 2010 785
to President Macapagal-Arroyo or to the next
De Castro vs. Judicial and Bar Council (JBC)
President. If the list is transmitted to her, the
incumbent President may either appoint or recently decided Lozano v. Nograles,21 which this Court
not appoint the replacement of Chief Justice Puno. dismissed through the pen of Chief Justice Puno. As
We cannot assume that the JBC will do one thing or no positive act has yet been committed by
the other. Neither can we truly predict what the respondents, the Court must not
intervene. Again, to borrow the words of Chief Justice
Puno in Lozano, “judicial review is effective largely 23 See Confederation of Sugar Producers Association, Inc. v.
Department of Agrarian Reform, G.R. No. 169514, March 30, 2007,
because it is not available simply at the behest of a 519 SCRA 582, 620; Board of Optometry v. Hon. Colet, 328 Phil. 1187,
partisan faction, but is exercised only to remedy a 1206 (1996); and Abbas v. Commission on Elections, G.R. Nos. 89651
particular, concrete injury.” & 89965, November 10, 1989, 179 SCRA 287, 300.
Further, the Mendoza petition cannot be likened to 786
the administrative matter in In Re Appointments of 786 SUPREME COURT REPORTS ANNOTATED
Hon. Valenzuela & Hon. Vallarta,22 over which the De Castro vs. Judicial and Bar Council (JBC)
Court assumed jurisdiction. In that case, the President can only lead to barren legal dialectics and sterile
appointed judges within the constitutional ban and conclusions unrelated to actualities.24
transmitted the appointments to the Chief Justice. Moreover, the function of the courts is to determine
Clearly, an actual controversy ripe for judicial controversies between litigants and not to give
determination existed in that case because a positive advisory opinions.25 Here, petitioners are asking this
act had been performed by the President in violation of Court to render an advisory opinion on what the JBC
the Constitution. Here, as shown above, no positive act and the President should do. To accede to it is
has been performed by either the JBC or the President tantamount to an incursion into the functions of the
to warrant judicial intervention. executive department.26This will further
To repeat for emphasis, before this Court steps in to inappropriately make the Court an adviser of the
wield its awesome power of deciding cases, there must President. Chief Justice Enrique Fernando, in his
first be an actual controversy ripe for judicial concurring opinion in Director of Prisons v. Ang Cho
adjudication. Here, the allegations in all the Kio,27 specifically counseled against this undue
petitions are conjectural or anticipatory. No actual portrayal by the Court of the alien role of adviser to
controversy between real litigants exists.23 These the President, thus—
consolidated petitions, in other words, are a “purely “Moreover, I would assume that those of us entrusted
academic exercise.” Hence, any resolution that this with judicial responsibility could not be unaware that we
may be laying ourselves open to the charge of
Court might make would constitute an attempt at
presumptuousness. Considering that the exercise of judicial
abstraction that
_______________
authority does not embrace the alien role of a presidential
adviser, an indictment of officiousness may be hard to repel.
21 Supra note 1. It is indefinitely worse if the advice thus gratuitously
22 358 Phil. 896; 298 SCRA 408 (1998). offered is ignored or disregarded. The loss of judicial
prestige may be incalculable. Thereafter, there may be less The ponencia also sought refuge in the American
than full respect for court decisions. It would impair the cases of Buckley v. Valeo28 and Regional Rail
confidence in its ability to live up to its trust not only on the Reorganization Act Cases29 to support its position that
part of immediate parties to the litigation but of the general “the reasonable certainty of the occurrence of the
public as well. Even if the teaching of decided cases both
perceived threat to a constitutional interest is
here and in the Philippines is not as clear therefore, there
sufficient to afford a basis for bringing a challenge,
should be, to say the least, the utmost reluctance on the
part of any court to arrogate for itself such a prerogative, provided the Court has sufficient facts before it to
the exercise of which is fraught with possibilities of such enable it to intelligently adjudicate the issues.” The
undesirable character.” cited American cases only considered the issue of
_______________ ripeness and did not confront the absence of an actual
case or controversy. Further, in Buckley, the members
24 Sec. Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 429; 292
SCRA 402, 416-417 (1998); Angara v. Electoral Commission, 63 Phil.
of the Commission were already appointed under the
139, 158 (1936). statute being challenged as unconstitutional, and they
25 Automotive Industry Workers Alliance v. Romulo, G.R. No. were about to exercise powers under the likewise
157509, January 18, 2005, 449 SCRA 1, 10. challenged provisions of the statute. Thus, in those
26 See Sec. Guingona, Jr. v. Court of Appeals, supra note 24.
27 33 Phil. 494, 510 (1970).
cases, there was the inevitability of the operation of a
787 challenged statute against the appellants. No such
VOL. 615, March 17, 2010 787 situation exists in the cases before us.
De Castro vs. Judicial and Bar Council (JBC) Here, the factual and legal setting is entirely
The ponencia holds that “we need not await the different. The JBC only started the screening of the
occurrence of the vacancy by May 17, 2010 in order to applicants. It has not yet transmitted a list to the
have the principal issue be ripe for judicial President, as, in fact, it still has to make the list. The
determination.” That may very well be desirable. But President has not yet made an appointment for there
still, there must be the palpable presence of an actual is yet no vacancy and no shortlist has yet been
controversy because, again, as discussed above, this transmitted to her. The constitutional provisions in
Court does not issue advisory opinions. The Court only question are not yet in operation; they may not even be
adjudicates actual cases that present definite and called into operation. It is not time for the Court to
concrete controversies touching on the legal relations intervene.
_______________
of the parties having adverse legal interests.
28 424 US 1 (1976). I AGREE with the conclusion that the President can
29 419 US 102 (1974).
appoint the Chief Justice and Members of the Supreme
788
788 SUPREME COURT REPORTS ANNOTATED Court two months before a presidential election up to
De Castro vs. Judicial and Bar Council (JBC)
the end of the President’s term, but DISAGREE with
the conclusion that the authority to appoint extends to
the whole Judiciary.
A final note. If petitioners only want guidance from
I. Prefatory Statement
this Court, then, let it be stated that enough guidance
The debate, in and out of this Court, on the issues
is already provided by the Constitution, the relevant
these consolidated cases pose, have been differently
laws, and the prevailing jurisprudence on the
described to be at varying levels of severity and
matter. The Court must not be unduly burdened
intensity. What we in Court do know is the
with petitions raising abstract, hypothetical, or
multiplicity of petitions and interventions
contingent questions. As fittingly phrased by Chief _______________
Justice Puno in Lozano—
“Given the sparseness of our resources, the capacity of 30 Supra note 1.
courts to render efficient judicial service to our people is 789
severely limited. For courts to indiscriminately open their VOL. 615, March 17, 2010 789
doors to all types of suits and suitors is for them to unduly De Castro vs. Judicial and Bar Council (JBC)
overburden their dockets, and ultimately render themselves filed, generating arguments of varying shades of
ineffective dispensers of justice. To be sure, this is an evil validity. Sad but true, what we need in considering all
that clearly confronts our judiciary today.”30
these submissions is simplification and focus on the
With the above disquisition, I find no compelling critical issues, not the mass of opinions that merely
need to discuss the other issues raised in the pile on top of one another. Based on this standard, this
consolidated petitions. Opinion shall endeavor to be brief, succinct but clear,
In light of the foregoing, I vote for the dismissal of and may not be the academic treatise lay readers and
the consolidated petitions. even lawyers customarily expect from the Court.
SEPARATE OPINION The constitutional provisions whose interpretation
and application are disputed (the disputed provisions)
BRION, J.: are Section 15, Article VII (the Article on the
Executive Department) and Sections 4(1) and 9 of
Article VIII (on the Judicial Department). Not often (2) The regular members of the Council shall be
mentioned but critical to the consideration of the appointed by the President for a term of four years with the
disputed provisions is Section 8, Article VIII on consent of the Commission on Appointments. Of the
the Judicial and Bar Council (JBC)—the entity Members first appointed, the representative of the
Integrated Bar shall serve for four years, the professor of
whose acts are under scrutiny in the dispute.
law for three years, the retired justice for two years, and
Section 15 of Article VII provides:
the representative of the private sector for one year.
“Section 15. Two months immediately before the next
(3) The Clerk of the Supreme Court shall be the
presidential elections and up to the end of his term, a
Secretary ex officio of the Council and shall keep a record of
President or Acting President shall not make appointments,
its proceedings.
except temporary appointments to executive positions when
(4) The regular members of the Council shall receive
continued vacancies therein will prejudice public service or
such emoluments as may be determined by the Supreme
endanger public safety.”
Court. The Supreme Court shall provide in its annual
On the other hand, the relevant Judicial budget the appropriations of the Council.
Department provisions read: (5) The Council shall have the principal functions of
“Section 4(1). The Supreme Court shall be composed of recommending appointees to the Judiciary. It may exercise
a Chief Justice and fourteen Associate Justices. It may other functions and duties as the Supreme Court may
sit en bancor in its discretion, in division of three, five, or assign to it.
seven Members. Any vacancy shall be filled within ninety Section 9. The Members of the Supreme Court and the
days from the occurrence thereof. judges of the lower courts shall be appointed by the
xxx President from a list of at least three nominees prepared by
Section 8. (1) A Judicial and Bar Council is hereby the Judicial and Bar Council for every vacancy. Such
created under the supervision of the Supreme Court appointment needs no confirmation.
composed of the Chief Justice as ex officio Chairman, the For the lower courts, the President shall issue the
Secretary of Justice, and a representative of the Congress appointment within ninety days from the submission of the
as ex officio Members, a representative of the Integrated list.”
Bar, a professor of law, a retired Member of the Supreme These provisions are quoted together to stress the
Court, and a representative of the private sector.790
role the JBC plays in the appointment process, and
790 SUPREME COURT REPORTS ANNOTATED
that it is effectively an adjunct of the Supreme Court:
De Castro vs. Judicial and Bar Council (JBC)
the JBC is under the supervision of the Court, but
is fully independent in undertaking its main function;
the Chief Justice is the Chair, with the SC Clerk of the
Supreme Court as the Secretary; the emoluments of ponencia’s ruling on justiciability as I believe
Council members are determined by the Supreme some of the petitions before us do not reach the
Court with the Council budget a part of the Supreme required level of justiciability; others, however,
Court budget; and the Supreme Court may assign qualify as discussed below so that my
functions and duties to the Council. disagreement with the lack of justiciability of
II. The Questions of Standing & Justiciability some of the petitions need not hinder the Court’s
I completely agree with the ponencia’s ruling on the consideration of the main issue at hand.
parties’ standing, their locus standi, to bring their _______________
petitions and interventions in their capacities as
1 Roque v. Commission on Elections, G.R. No. 188456, September
citizens and lawyers who 10, 2009, 599 SCRA 69; Garcillano v. House of Representatives, G.R.
791 No. 170388, December 23, 2008, 575 SCRA 170; David v. Macapagal-
VOL. 615, March 17, 2010 791 Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489,
De Castro vs. Judicial and Bar Council (JBC) 171424, May 3, 2006, 489 SCRA 160, 224; Agan Jr. v. Philippine
International Air Terminals Co., Inc., 450 Phil. 744; 803-804; 402
stand to be affected by our ruling as lawyers or by the SCRA 612 (2003); Bayan v. Executive Secretary Zamora, 396 Phil.
impact of our ruling on the nation and the all- 623, 548-650; 342 SCRA 449 (2000); Kilosbayan, Incorporated v.
important electoral exercise we shall hold in May Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110,
138; Association of Small Landowners in the Philippines, Inc. v.
2010. Jurisprudence is replete with precedents on the
Secretary of Agrariam Reform, G.R. Nos. 78742, 79310, 79744, 79777,
liberal appreciation of thelocus standi rule on issues July 14, 1989, 175 SCRA 343 365; and Araneta v. Dinglasan, 84 Phil.
that are of transcendental concern to the nation,1 and 368, 373 (1949).
the petitioners very well qualify under these rulings. 792
In this sense, locus standi is not a critical issue in the 792 SUPREME COURT REPORTS ANNOTATED
present case. In fact, the concern voiced out during the De Castro vs. Judicial and Bar Council (JBC)
Court’s deliberations, was more on how participation
can be limited to those who have substantial The basic requisite before this Court can rule is the
contributions, through their submissions, to the presence of an actual case calling for the exercise of
resolution of the grave issues before the Court. judicial power. This is a requirement that the
While the rule on locus standi can be relaxed, the Constitution itself expressly imposes; in granting the
rule on the need for an actual justiciable case that is Court judicial power and in defining the grant, the
ripe for adjudication addresses a different concern and Constitution expressly states that judicial power
cannot be similarly treated. I disagree with the includes the duty to settle actualcontroversies
involving rights which are legally demandable and 2 Section 1, par. 2, Article VIII, CONSTITUTION.
3 See: Guingona, Jr., v. Court of Appeals, 354 Phil. 426; 292
enforceable.2 Thus, the Court does not issue advisory SCRA 402 (1998); see also: Director of Prisons v. Ang Cho Kio, 33
opinions, nor do we pass upon hypothetical cases, Phil. 494 (1970).
feigned problems or friendly suits collusively arranged 4 Id.
between parties without real adverse interests. Courts 793
cannot adjudicate mere academic questions to satisfy VOL. 615, March 17, 2010 793
scholarly interest, however intellectually challenging De Castro vs. Judicial and Bar Council (JBC)
they may be. As a condition precedent to the exercise the bench and the bar on the extent of protection given
of judicial power, an actual controversy between by constitutional guarantees.5
litigants must first exist.3 Separately from the above concept of claims
An actual case or controversy exists when a case involving demandable rights and obligations (but no
involves a clash of legal rights or an assertion of less real in the strict constitutional sense), is the
opposite legal claims that the courts can resolve authority of the Supreme Court to rule on matters
through the application of law and jurisprudence. The arising in the exercise of its power of supervision.
case cannot be abstract or hypothetical as it must be a Under Section 6 of Article VIII of the Constitution,
concrete dispute touching on the legal relations of the Supreme Court is granted the power of
parties having adverse legal interests. A justiciable administrative supervision over all courts and the
controversy admits of specific relief through a decree personnel thereof. Pursuant to this power, the Court
that is conclusive in character, whereas an opinion issues administrative circulars and memoranda to
only advises what the law would be upon a promote the efficient and effective administration of
hypothetical state of facts. An actual case is ripe for justice, and holds judges and court personnel
adjudication when the act being challenged has a administratively accountable for lapses they may
direct adverse effect on the individual challenging it.4 commit.6 Through these circulars, memoranda and
In the justiciable cases this Court has passed upon, administrative matters and cases, the Court likewise
particularly in cases involving constitutional issues, interprets laws relevant to its power of
we have held that the Court also has the duty to supervision. The
7 Court likewise issues rules
formulate guiding and controlling constitutional concerning, among others, the protection and
principles, precepts, doctrines, or rules. The Court enforcement of constitutional rights, pleading,
carries the symbolic function of educating practice, and procedure in all courts, the admission to
_______________ the practice of law, and the Integrated Bar.8
This aspect of the power of the Court—its power of interpreting for them the constitutional provisions,
supervision—is particularly relevant in this case since laws and regulations affecting the means and manner
the JBC was created “under the supervision of the of the exercise of their powers as the Supreme Court is
Supreme Court,” with the “principal function of the final authority on the interpretation of these
recommending appointees to the Judiciary.” In the instruments. A prime example of the exercise of the
same manner that the Court cannot dictate on the Court’s power of supervision is In Re: Appointments
lower courts on how they should decide cases except dated March 30, 1998 of Hon. Mateo A. Valenzuela and
through the appeal and review process provided by the Hon. Placido B. Vallarta as Judges of the Regional
Rules of Court, so also cannot the Court intervene in Trial Court of Branch 62, Bago City, and of Branch 24,
the JBC’s Cabanatuan City, respectively, A.M. No. 98-5-01-SC,
_______________ November 9, 1998 (hereinafter referred to
asValenzuela) where the Court nullified the oath of
5 Salonga v. Ernani Cruz Pano, et al., 219 Phil. 402, 429-430; 134
SCRA 438, 463 (1985). office taken by Judge Valenzuela, while at the same
6 See for example, In Re: List of Judges who failed to comply with time giving its interpretation of how the election ban
Administrative Circular No. 10-94, dated June 29, 1994, 439 Phil. against appointment operates on the Judiciary,
118; 390 SCRA 319 (2002).
7 CONSTITUTION, Article VIII, Section, 6.
thereby setting the guidelines on how Section 15,
8 Id., Article VIII, Section 5(5). Article VII is to be read and interpreted.
794 The Valenzuela case shall be discussed more fully
794 SUPREME COURT REPORTS ANNOTATED below.
De Castro vs. Judicial and Bar Council (JBC) a. The De Castro Petition
authority to discharge its principal function. In this In his petition for certiorari and mandamus, Arturo
sense, the JBC is fully independent as shown by A.M. De Castro (in G.R. 191002) seeks the review of the
No. 03-11-16-SC or Resolution Strengthening The Role action of the JBC deferring the sending to the
and Capacity of the Judicial and Bar Council and incumbent President of the list of nominees for the
Establishing the Offices Therein. In both cases, position of Chief Justice, and seeks as well to compel
however and unless otherwise defined by the Court (as the JBC to send this list to the incumbent President
in A.M. No. 03-11-16-SC), the Court can supervise by when the position of Chief Justice becomes vacant. He
ensuring the legality and correctness of these entities’ posits that the JBC’s decision to defer action on the list
exercise of their powers as to means and manner, and
is both a grave abuse of discretion and a refusal to deals solely with the screening of applicants who wish
perform a to have the privilege of applying for judicial positions.
795 From the point of view of substance, the petition
VOL. 615, March 17, 2010 795 admits that the vacancy for the position of Chief
De Castro vs. Judicial and Bar Council (JBC) Justice will not occur until May 17, 2010, and alleges
constitutionally-mandated duty that may be compelled that the JBC has resolved “to defer the decision to
bymandamus.9 whom to send the list of 3 nominees, whether to the
On its face, this petition fails to present any incumbent President or to the next
justiciable controversy that can be the subject of a _______________
ruling from this Court. As a petition for certiorari,
9 De Castro petition, p. 5.
it must first show as a minimum requirement that the 10 RULES OF COURT, Rule 65, Section 1.
JBC is a tribunal, board or officer exercising judicial or 11 RULES OF COURT, Rule 65, Section 3.
quasi-judicial functions and is acting outside its 12 De Castro petition, par. 8, page 5.
jurisdiction or with grave abuse of discretion 13 See: Constitutional Provision on the JBC, pp. 4-5 of this
opinion.
amounting to lack or excess of jurisdiction.10 A 796
petition for mandamus, on the other hand, at the 796 SUPREME COURT REPORTS ANNOTATED
very least must show that a tribunal, corporation, De Castro vs. Judicial and Bar Council (JBC)
board or officer unlawfully neglects the performance of President following the May 11, 2010 national
an act which the law specifically enjoins as a duty.”11 elections in view of Section 15, Article VII of the
The petition facially fails to characterize the JBC as Constitution that bans appointments during the
a council exercising judicial or quasi-judicial functions, election period,”14 citing various newspaper
and in fact states that the JBC does not have any clippings and the judicial notice of this Court.15
judicial function.12 It cannot so characterize the JBC As suggested, we take judicial notice of the JBC
because it really does not exercise judicial or quasi- action on the nomination process for the position of
judicial functions. It is not involved in the Chief Justice, as circulated in the media and as
determination of rights and obligations based on the evidenced by official JBC records, and we note that the
constitution, laws and regulations; it is an JBC has taken preliminary steps but not conclusive
administrative body under the supervision of the action on the submission of a list of nominees for the
Supreme Court and was created principally to position of Chief Justice.16 So far, the JBC has
nominate appointees to the Judiciary.13 As such, it
announced the forthcoming vacancy, the opening of the De Castro vs. Judicial and Bar Council (JBC)
position to applicants,17the announcement of nominees, Neither the Constitution nor the Rules of
and the invitation for comments.18 These are confirmed Procedure of the JBC20 categorically states when a list
in the JBC’s Comment dated February 25, 2010 which of nominees for a vacant Supreme Court position shall
further states that “the next stage of the process will be submitted to the President, although the
be the public interview of the candidates, and the Constitution gives the President 90 days within which
preparation of the shortlist of candidates have yet to to fill the vacancy.21 This presidential deadline implies
be undertaken…including the interview of the that the JBC should submit its list of nominees before,
constitutional experts as may be needed.”19 Thus, this or at the latest, on the day the vacancy materializes so
Court is fully aware, based on its official as not to shorten the 90-day period given to the
knowledge that the petition cites, of the extent of JBC President within which to act.
developments in the nomination process, and the Given these timelines and the May 17, 2010
petition cannot invoke our judicial notice to validly vacancy date—considered with the allegations
allege that the JBC has deferred action on the matter. regarding the nature of the JBC’s functions and its
For the petition to insist that a deferment has taken actions that we are asked to judicially notice—the De
place is to mislead this Court on a matter that is Castro petition filed on February 9, 2010 clearly does
within its official knowledge. not present a justiciable case for the issuance of a writ
_______________ of certiorari. The petition cannot make an incorrect
14 De Castro petition, p. 3.
and misleading characterization of the JBC action,
15 De Castro petition, p. 4. citing our judicial notice as basis, and then proceed to
16 Judicial notice is taken of the publications cited, as well as the claim that grave abuse of discretion has been
records on which these publications are based. committed. The study of the question of submitting a
17 JBC Announcement dated January 20, 2010, part of the record
on file with the JBC and with the Court, and published in the Phil.
list to the President in the JBC’s step-by-step
Daily Inquirer on January 21, 2010. application and nomination process is not a grave
18 JBC Announcement dated 11 February, 2010, part of the abuse of discretion simply because the petition calls it
record on file with the JBC and with the Court, and published in the so for purposes of securing a justiciable case for our
Phil. Daily Inquirer on Feb. 13, 2010.
19 JBC Comment, dated Feb. 25, 2010, p. 6. consideration.22
797 Since the obligation to submit a list will not accrue
VOL. 615, March 17, 2010 797 until immediately before or at the time the vacancy
materializes (as the petition’s prayer in fact admits), petition since it similarly asks for the “review of the
no duty can likewise be said to have as yet been JBC action in deferring to transmit to the incumbent
neglected or violated to serve as basis for the special President the list of nominees for appointment of a
civil action of mandamus. The JBC’s study of the new Chief Justice, and to compel the JBC to send the
applicable constitutional issue, as part of the JBC’s same to the incumbent President for appointment of a
nomination process, cannot be “tantamount to a Chief Justice, when the position becomes vacant upon
refusal to perform its constitutionally-mandated the mandatory retirement of the Honorable Chief
duty.”Presently, what exists is a purely potential Justice Reynato S. Puno.”
controversy that has not rip- Peralta only differs from De Castro because it does
_______________ not allege “deferment” on the basis of media reports
and judicial notice; instead, it attaches the January 18,
20 JBC-009, October 18, 2000.
21 CONSTITUTION, Article VIII, Section 4(1). 2010 resolution of the JBC as Annex “A” and cites this
22 See: allegation of grave abuse, De Castro petition, p.5. as a basis. An examination of Annex “A,” however,
798 shows that the JBC did not in fact resolve to defer the
798 SUPREME COURT REPORTS ANNOTATED submission of the list of nominees; the JBC merely
De Castro vs. Judicial and Bar Council (JBC) stated that—“As to the time to submit this shortlist to
ened into a concrete dispute where rights have been the proper appointing authority, in light of the
violated or can already be asserted. Constitution, existing laws and jurisprudence, the JBC
In these lights, the Court should dismiss the welcomes and will consider all view on the
De Castro petition outright. Similarly, the matter.” This is not a deferment, nor is it a refusal to
oppositions filed by way of intervening in and perform a duty assigned by law as the duty to submit a
anchored on the De Castro petition should list of nominees will not mature until a vacancy has or
similarly be dismissed. is about to occur.799
b. The Peralta Petition. VOL. 615, March 17, 2010 799
John G. Peralta’s petition (G.R. 191149) is likewise De Castro vs. Judicial and Bar Council (JBC)
forcertiorari and mandamus. Like De Castro’s, he
failed to allege that the JBC exercises judicial or quasi- For the same absence of a justiciable case, the
judicial functions—a must in any petition Peralta petition for certiorari and mandamus and all
for certiorari. In fact the Peralta petition can be related interventions should be dismissed outright.
described as an imperfect carbon copy of De Castro’s
c. The PHILCONSA Petition. and interpretation of the constitutional provisions on
The petition of the Philippine Constitution the appointment of the Chief Justice, the Members of
Association (PHILCONSA, G.R. 191057) is the Court, and the Judiciary in general during the
for mandamus under Rule 65 of the Rules of Court. election ban period.800
It seeks to compel the JBC to include the names of 800 SUPREME COURT REPORTS ANNOTATED
Senior Justices Antonio Carpio and Conchita Carpio- De Castro vs. Judicial and Bar Council (JBC)
Morales, and Prosecutor Dennis Villa Ignacio, in the
list of nominees for the position of Chief Justice As we did with the De Castro petition and based on
although these nominees have manifested that they the same standards we discussed above, we hold that
want their names submitted to the incoming, not to the PHILCONSA petition presents no justiciable
the incumbent, President of the Philippines. controversy that can be the basis for its consideration
The petition also seeks various declarations by this as a petition formandamus and for its adjudication on
Court, among them, that Section 15, Article VIII the merits. On its face, the petition defines no specific
should apply only to the Executive Department and duty that the JBC should exercise and has neglected to
not to the Judiciary; and that the Decision of this exercise, and presents no right that has been violated
Court in Valenzuelashould be set aside and overruled. nor any basis to assert any legal right.23 Like the De
As basis, the petition alleges that the issues raised Castro petition, it only presents to the Court a
in the petition have spawned “a frenzied inflammatory potential controversy that has not ripened.
debate on the constitutional provisions” that has Consequently, the Court should rule that the
“divided the bench and the bar and the general public PHILCONSA petition should be dismissed outright
as well.” It likewise posits that due to the positions the together with any intervention supporting or opposing
nominees have taken, a “final authoritative this petition.
pronouncement” from this Court on the meaning and d. The Mendoza Petition.
construction of Sections 4(1), 8(5) and 9, Article VIII . . The Mendoza petition (A.M. 10-2-5-SC) is unique as
. in relation with Section 15, Article VII, is necessary. even its docket case number will show; it is presented
The petition grounds itself, too, on the needs of public as an administrative matter for the Court’s
interest and public service. consideration pursuant to its power of supervision over
On the whole, the PHILCONSA petition merely judges and over the JBC,24 following the lead taken in
asks for a declaration from this Court of the meaning the Valenzuela case (an A.M. case).
The cited Valenzuela case is rooted in a situation An administrative matter that is entered in the
not far different from the present case; a vacancy in Court’s docket is either an administrative case (A.C.)
the Court25had occurred and a difference of opinion or an administrative matter (A.M.) submitted to the
arose between the Executive and the Court on the Court for its consideration and action pursuant to its
application of Section 15, Article VII, in relation with power of supervision. An A.C. involves disciplinary and
Section 4(1) and 9 of Article VIII, of the Constitution. other actions over members of the Bar, based on the
An exchange of letters took place between the Palace Court’s supervision over them arising from the
and the Court on their respective positions. In the Supreme Court’s authority to promulgate rules
meanwhile, the President appointed two RTC judges relating to the admission to the practice of law and to
(Valenzuela and Vallarta) within the two-month period the Integrated Bar. Closely related to A.C. cases are
prior the Bar Matter (B.M.) cases particularly involving
_______________ admission to the practice of law.26 An A.M. is a matter
based on the Supreme Court’s power of supervision:
23 Pursuant to Section 3, Rule 65 of the Rules of Court, a petition
formandamus must allege the unlawful neglect to perform an act under Section 6, Article VIII, this refers to the Court’s
which the law specifically enjoins as resulting from an office. administrative supervision over all courts and the
24 CONSTITUTION, Article VIII, Section 8(1). personnel thereof; under Section 8, it refers to its
25 Upon the retirement of Associate Justice Ricardo J. Francisco.
supervision over the JBC.
801
VOL. 615, March 17, 2010 801 In using an administrative matter as its medium,
De Castro vs. Judicial and Bar Council (JBC)
the Mendoza petition cites as basis the effect of a
complete election ban on judicial appointments (in
to the election. The Palace forwarded the judges’
view of the already high level of vacancies and the
appointments to the Court, thus confronting Chief
backlog of cases) and submits this as an
Justice Narvasa with the question of whether—given
administrative matter that the Court, in the exercise of
the election ban under Section 15, Article VII
its supervision over the Judiciary, should act upon. At
that prima facie applies—he should transmit the
the same time, it cites the “public discourse and
appointment papers to the appointed judges so they
controversy” now taking place because of the
could take their oaths in accordance with existing
application of the election ban on the appointment of
practice. At that point, the Court decided to treat the
the Chief Justice, citing in this regard the very same
matter as an “administrative matter” that was ripe for
reasons mentioned in Valenzuela about the need to
adjudication.
resolve the issue and avoid the recurrence of conflict matter of nominations to fill up the lone vacancy in the
between Supreme Court or any other vacancy until further
_______________ orders.”
From the time of Valenzuela up to the present, the
26 CONSTITUTION, Article VIII, Section 5(5).
802 governing law and the relationships between the Court
802 SUPREME COURT REPORTS ANNOTATED and the JBC have not changed; the supervisory
De Castro vs. Judicial and Bar Council (JBC) relationship still exists full strength. The JBC is now
the Executive and the Judiciary on the matters; and in fact waiting for the Court’s action on how it regards
the need to “avoid any possible polemics concerning the Valenzuela ruling—whether the Court will
the matter.”27 The petition mentions as well that the reiterate, modify or completely abandon it. The JBC
Court addressed the election ban issue expressly admitted its dilemna in its Comment when it
in Valenzuela as an A.M. case, and apparently takes said: “Since the Honorable Court is the final interpreter
the lead from this decided A.M. matter. of the Constitution, the JBC will be guided by its
An undeniable feature of the Mendoza petition, decision in these consolidated Petitions and
compared to Valenzuela, is its lack of any clear and Administrative Matter.” Under these plain terms, the
specific point where an actual actionable case arose JBC recognizes that a controversy exists on the issue
(the appointment of two RTC judges during the of submitting a shortlist to the President and it will
election ban period) calling for a determination of how not act except with guidance from this Court. This is
the Chief Justice and the Court should act. The a point
_______________
Mendoza petition, however, does not look up to the
Court’s supervisory authority over lower court 27 Mendoza petition, pp. 5 and 6.
personnel pursuant to Section 6 of Article VIII of the 803
Constitution, in the way the Court did VOL. 615, March 17, 2010 803
in Valenzuela.Expressly, the Mendoza petition De Castro vs. Judicial and Bar Council (JBC)
looks to the Court’s supervisory authority over no less critical, from the point of view of
the JBC, an authority that the Court in fact asserted supervision,than the appointment of the two
in Valenzuela when, in the exercise of “its power of judges during the election ban period
supervision over the Judicial and Bar Council,” it in Valenzuela.
“INSTRUCTED” the JBC “to defer all actions on the
That the JBC has taken this stance is not While their cited grounds and the intrinsic merits of
surprising given the two petitions for prohibition filed these grounds vary, the Soriano and Tolentino
by Jaime N. Soriano (G.R. No. 191032) and Atty. petitions, on their faces, present actual justiciable
Amador Z. Tolentino, Jr., (G.R. No. 191342) that, on controversies that are ripe for adjudication. Section 15,
their face, show a cause of action ripe for adjudication. Article VII of the Constitution embodies a ban against
d.1 The Soriano and Tolentino Petitions appointments by the incumbent Presi-
Soriano seeks to bar the JBC from continuing the _______________
selection processes on the ground that the Supreme
28 Soriano petition, p. 4.
Court, not the President, appoints the Chief Justice. 29 Tolentino petition, p. 2.
Tolentino, on the other hand, seeks the issuance of a 804
writ of prohibition under Rule 65 of the 1997 Rules of 804 SUPREME COURT REPORTS ANNOTATED
Court, among others, to enjoin and restrain the JBC De Castro vs. Judicial and Bar Council (JBC)
from submitting a list of nominees for judiciary dent two months before the election up to the end of
positions to the incumbent President, on the ground her term. A ruling from this Court (Valenzuela) is
that an existing election ban against appointments is likewise in place confirming the validity of this ban
in place under Section 15, Article VII of the against the Judiciary, or at least against the
Constitution. appointment of lower court judges. A vacancy in the
In the simplest terms, the JBC—by its own position of Chief Justice will occur on May 17, 2010,
admission in its Comment and by Soriano’s28 and within the period of the ban, and the JBC is
Tolentino’s29 own admissions in their petitions—is now admittedly preparing the submission of its list of
in the process of preparing its submission of nominees nominees for the position of Chief Justice to the
for the vacancy to be created by the retirement of the President. Under the terms of Section 15, Article VII
incumbent Chief Justice, and has already completed and the obtaining facts, a prima facie case exists
the initial phases of this preparation. Soriano and supporting the petition for violation of the election
Tolentino want to stop this process and compel the ban.
JBC to immediately discontinue its activities, d.2. Supervision over the JBC.
apparently on the theory that nomination is part of the That the JBC—now under a different
appointment process membership—needs guidance on the course of action it
should take on the constitutional issues posed, can
best be understood when the realities behind the The third reality, closely related to the second, is
constitutional provisions are examined. that in resolving the coverage of the election ban vis-à-
A first reality is that the JBC cannot, on its own vis the appointment of the Chief Justice and the
due to lack of the proper authority, determine the Members of the Court, provisions of the Constitution
appropriate course of action to take under the other than the disputed provisions must be taken into
Constitution. Its principal function is to recommend account. In considering when and how to act, the JBC
appointees to the Judiciary and it has no authority to has to consider that:
interpret constitutional provisions, even those 1. The President has a term of six years
affecting its principal function; the authority to whichbegins at noon of June 30 following the
undertake constitutional interpretation belongs to the election, which implies that the outgoing
courts alone. President remains President up to that time.
A second reality is that the disputed (Section 4, Article VII). The President assumes
constitutional provisions do not stand alone and office at the beginning of his or her term, with
cannot be read independently of one another; the provision for the situations where the President
Constitution and its various provisions have to be read fails to qualify or is unavailable at the beginning
and interpreted as one seamless whole,30 giving of his term (Section 7, Article VII).
sufficient emphasis to every aspect in accordance with 2. The Senators and the Congressmen begin
the hierarchy of our constitutional values. The their respective terms also at midday of June
disputed provisions should be read together and, as 30(Sections 4 and 7, Article VI). The Congress
reflections of the will of the people, should be given convenes on the 4th Monday of July for its
effect to the extent that they should be reconciled. regular session, but the President may call a
_______________ special session at any time. (Section 15, Article
VI)
30 Civil Liberties Union v. Executive Secretary, G.R. No. 83896,
February 21, 1991, 194 SCRA 317, 330. 3. The Valenzuela case cited as authority for
805 the position that the election ban provision
VOL. 615, March 17, 2010 805 applies to the whole Judiciary, only decided the
De Castro vs. Judicial and Bar Council (JBC) issue with respect to lower court judges,
specifically, those covered by Section 9, Article
VIII of the Constitution. Any reference to the
filling up of vacancies in the Supreme Court act in his place. While this is essentially a
pursuant to Section 4(1), Article VIII Supreme Court concern, the Chief Justice is
constitutes obiter dictum as this issue was not the ex officio Chair of the JBC; hence it must be
directly in issue and was not ruled upon. concerned and be properly guided.
These provisions and interpretation of 4. The appointment of the new Chief Justice
the Valenzuelaruling—when read together with has to be made within 90 days from the time the
disputed provisions, related with one another, and vacancy occurs, which translates to a deadline of
considered with the May 17, 2010 retirement of the August 15, 2010.
current Chief Justice—bring into focus certain 5. The deadline for the appointment is fixed
unavoidable realities, as follows: (as it is not reckoned from the date of submission
1. If the election ban would apply fully to the of the JBC list, as in the lower courts) which
Supreme Court, the incumbent President cannot means that the JBC ideally will have to make its
appoint a list available at the start of the 90-day period so
806 that its process will not eat up the 90-day period
806 SUPREME COURT REPORTS ANNOTATED granted the President.
De Castro vs. Judicial and Bar Council (JBC) 6. After noon of June 30, 2010, the JBC
Member of the Court beginning March 10, 2010, representation from Congress would be vacant;
all the way up to June 30, 2010. the current representatives’ mandates to act for
2. The retirement of the incumbent Chief their principals extend only to the end of their
Justice—May 17, 2010—falls within the period of present terms; thus, the JBC shall be operating
the election ban. (In an extreme example where at that point at less than its full membership.
the retirement of a Member of the Court falls on or 7. Congress will not convene until the 4th
very close to the day the election ban starts, the Monday of July, 2010, but would still need to
Office of the Solicitor General calculates in its organize before the two Houses of Congress can
Comment that the whole 90 days given to the send their representatives to the JBC—a process
President to make appointment would be covered may extend well into August 2010.807
by the election ban.) VOL. 615, March 17, 2010 807
3. Beginning May 17, 2010, the Chief Justice De Castro vs. Judicial and Bar Council (JBC)
position would be vacant, giving rise to the
question of whether an Acting Chief Justice can
8. In July 2010, one regular member of the the latter’s need for guidance, and the existence of an
JBC would vacate his post. Filling up this actual controversy that Soriano and Tolentino cite,
vacancy requires a presidential appointment and save the Mendoza petition from being one for
the concurrence of the Commission on declaratory relief, which petition is originally
Appointments. cognizable by the Regional Trial Court, not by this
9. Last but not the least, the prohibition in Court.31
Section 15, Article VII is that “a President or _______________
Acting President shall not make appointments.”
31 Under Section 1, Rule 63 of the Rules of Court, a petition for
This prohibition is expressly addressed to the declaratory relief is available only before breach or violation of the
President and covers the act of appointment; the deed or instrument whose terms are sought to be clarified.
prohibition is not against the JBC in the 808
performance of its function of “recommending 808 SUPREME COURT REPORTS ANNOTATED
appointees to the Judiciary”—an act that is one De Castro vs. Judicial and Bar Council (JBC)
step away from the act of making appointments. To summarize the preliminary considerations
d.3. Conclusion on the Mendoza Petition of locus standi and justiciability and the
Given the justiciable Soriano and Tolentino outstanding issues for resolution, the main issue in
petitions that directly address the JBC and its these consolidated cases continues to be whether
activities, the impact of the above-outlined realities on Section 15, Article VII of the Constitution limiting the
the grant of a writ of prohibition, and the undeniable authority of the President of the Philippines to
supervision that the Supreme Court exercises over the exercise her power of appointment shall prevail over
JBC as well as its role as the interpreter of the the mandate, provided under Section 4(1) and 9,
Constitution—sufficiently compelling reason Article VIII, that appointments to the Supreme Court
exists to recognize the Mendoza petition as a shall be within 90 days from the occurrence of the
properly filed A.M. petition that should fully be vacancy, and within 90 days from the JBC’s
heard in these proceedings to fully ventilate the submission of its list of nominees for the lower courts.
supervisory aspect of the Court’s relationship A sub-issue is the continued effectiveness and strength
with the JBC and to reflect, once again, how this of the Valenzuela case as guide and precedent in
Court views the issues first considered resolving the above issue. All these should be read
in Valenzuela. The Court’s supervision over the JBC, in the context of the petitions for prohibition
and the Mendoza A.M. petition, as the De Castro
and the PHILCONSA petitions suffer from lack case, the appointing authority was the Chief
of justiciability and prematurity. Executive.
III. The Merits of the Petitions The use of the generic term “Members of the
a. The Soriano Petition. Supreme Court” under Section 9, Article VIII in
The Soriano petition presents a very novel delineating the appointing authority under the 1987
interpretation of Section 9, Article VIII in its position Constitution, is not new. This was the term used in the
that the authority to appoint the Chief Justice is present line of Philippine Constitutions, from 1935 to
lodged in the Court, not in the President. 1987, and the inclusion of the Chief Justice with the
The correctness of this reading of the law is general term “Member of the Court” has never been in
contradicted by both history and by the law itself. doubt.32 In fact, Section 4(1) of the present Constitution
History tells us that, without exception, the Chief itself confirms that the Chief Justice is a Member of
Justice of the Supreme Court has always been the Court when it provides that the Court “may sit en
appointed by the head of the Executive Department. banc or, in its discretion, in divisions of three, five, or
Thus, Chief Justices Cayetano Arellano, Victorino seven Members.” The Chief Justice is a Member of
Mapa, Manuel Araullo, Ramon Avancena, Jose Abad the En Banc and of the First Division—in fact, he is
Santos, Jose Yulo, Manuel Moran and all the Chief the Chair of the En Banc and of the First Division—
Justices after Philippine independence were appointed but even as Chair is counted in the total membership
by the Chief Executive. The only difference in their of the En Banc or the Division for all purposes,
respective appointments is the sovereignty under particularly of quorum. Thus, at the same time that
which they were appointed.809 Section 4(1) speaks of a “Supreme Court. . . composed
VOL. 615, March 17, 2010 809 of one Chief Justice and fourteen Associate Justices,” it
De Castro vs. Judicial and Bar Council (JBC) likewise calls all of them Members in defining how
they will sit in the Court.
The Chief Justices under the American regime were Thus, both by law and history, the Chief Justice has
appointed by the President of the United States; one always been a Member of the Court—although, as
Chief Justice each was appointed under the a primus inter pares—appointed by the President
Commonwealth and under the Japanese Military together with every other Associate Justice. For this
Administration; and thereafter all the Chief Justices reason, we should dismiss the Soriano petition for lack
were appointed by the Philippine President. In every of merit.
b. The Tolentino and Mendoza Petitions; exception found in Section 15 itself) so that even the
the OSG and JBC Comments Judiciary is covered by the ban on appointments.
This is only a Separate Opinion, not a ponencia, and On the other hand, Section 4(1) is likewise very
rather than recite or tabulate the various positions clear and categorical in its terms: any vacancy in the
taken in these Court shall be filled within 90 days from its
_______________ occurrence. In the way of Section 15, Section 4(1) is
also clear and categorical and provides no exception;
32 See: Vargas v. Rilloraza, 80 Phil. 297, 342 (1948).
810 the appointment refers solely to the Members of the
810 SUPREME COURT REPORTS ANNOTATED Supreme Court and does not mention any period that
De Castro vs. Judicial and Bar Council (JBC) would interrupt, hold or postpone the 90-day
submissions, I shall instead discuss the issues based requirement.
ontopically arranged subdivisions and introduce the Section 9 may offer more flexibility in its
various positions as arguments, for or against, without application as the mandate for the President is to issue
always naming the source. This is solely for ease of appointments within 90 days from submission of the
presentation, clarity and continuity rather than for list, without specifying when the submission should be
any devious reason. made. From their wordings, urgency leaps up from
b.1. Does a conflict of provisions textually Section 4(1) while no such message emanates from
exist? Section 9; in the latter the JBC appears free to
No need exists to further recite Section 15, Article determine when a submission is to be made, obligating
VII, on the one hand, and Sections 4(1) and 9, Article the President to issue appointments within 90 days
VIII, on the other, as they are already quoted at the from the submission of the JBC list. From this view,
start of this Opinion. I do not believe any of the the appointment period under Section 9 is one that is
parties, though, will dispute that a conflict exists even flexible and can move.811
from the text of these provisions alone. VOL. 615, March 17, 2010 811
Section 15 on its face disallows any appointment in De Castro vs. Judicial and Bar Council (JBC)
clear negative terms (shall not make) without
specifying the appointments covered by the Thus, in terms of conflict, Sections 4(1) and Sections
prohibition. From this literal reading springs the 15 can be said to be directly in conflict with each other,
argument that no exception is provided (except the while a conflict is much less evident from a comparison
of Sections 9 and 15. This conclusion answers From this perspective, it appears clear to me
the verba legisargument of the Peralta petition that thatValenzuela should be read and appreciated for
when the words or terms of a statute or provision is what it is—a ruling made on the basis of the Court’s
clear and unambiguous, then no interpretation is supervision over judicial personnel that upholds the
necessary as the words or terms shall be understood in election ban as against the appointment of lower court
their ordinary meaning. In this case, the individual judges appointed pursuant to the period provided by
provisions, in themselves, are clear; the conflict Section 9 of Article VIII. Thus,Valenzuela’s application
surfaces when they operate in tandem or against one to the filling up of a vacancy in the
another. 812
b.2. The Valenzuela Ruling. 812 SUPREME COURT REPORTS ANNOTATED
The Valenzuela decision gives the full flavor of how De Castro vs. Judicial and Bar Council (JBC)
the election ban issue arose because of Chief Justice Supreme Court is a mere obiter dictum as the Court is
Narvasa’s very candid treatment of the facts and the largely governed by Section 4(1) with respect to the
issue.Valenzuela openly stated that at the root of the period of appointment. The Section 4(1) period, of
dispute was the then existing vacancy in the Court and course and as already mentioned above, has an impact
the difference of opinion on the matter between the uniquely its own that is different from that created by
Executive and the Court on the application of Section the period provided for the lower court under Section
15, Article VII, in relation with Section 4(1) and 9 of 9.
Article VIII, of the Constitution. I find it interesting that Peralta largely justifies his
What appears very clear from the decision, position that the JBC should now be prohibited from
however, is that the factual situation the Court ruled proceeding with the nomination process based
upon, in the exercise of its supervision of court onValenzuela as the prevailing rule that should be
personnel, was the appointment by the President of followed under the principle of stare decisis. Peralta
two RTC judges during the period of the ban. It is clear apparently misappreciates the reach and real holding
from the decision, too, that no immediate appointment of Valenzuela, as explained and clarified above. A
was ever made to the Court for the replacement of ruling involving the appointment of lower court judges
retired Justice Ricardo Francisco as the JBC failed to under Section 9, Article VIII cannot simply be bodily
meet on the required nominations prior to the onset of lifted and applied in toto to the appointment of
the election ban. Members of the Supreme Court under Section 4(1) of
the same Article.
Because of his misappreciation, Peralta is likewise famous Brown v. Board of Education when it ruled
mistaken in his appeal to the principle of stare decisis. that “separate but equal” doctrine is inherently
The stability of judgments is indeed a glue that the unequal in the context of public education.34 I mention
Judiciary and the litigating public cannot do without if this, if only as a reminder to one and all, that the
we are to have a working and stable justice system. terms of the Valenzuela ruling, if truly applicable even
Because of this role, the principle is one that binds all to appointments to this Court, is not written in stone
courts, including this Court, and the litigating public. and remains open for review by this Court.
The principle, however, is not open-ended and contains Valenzuela rests on the reasoning that the evil that
its own self-limitations; it applies only to actions in all Section 15 seeks to remedy—vote buying, midnight
future similarcases and to none other. Where ample appointments and partisan reasons to influence the
room for distinction exists, as in this case, then stare results of the election—is so pervasive so that the
decisis does not apply. Section 15 ban should prevail over everything else.
Another aspect of stare decisis that must be The Court, however, forgot in some statements in this
appreciated is that Supreme Court rulings are not case that hand in hand with Section 15 is Section 4(1)
written in stone so that they will remain unerased and where the framers also recognized, in clear and
applicable for all times. The Supreme Court’s review of absolute terms, that a vacancy in the Court should be
rulings and their binding effects is a continuing one so filled up because of the importance of having a
that a ruling in one era may be declared by the Court Supreme Court with its full and complete membership.
at some future time to be no longer true and should Completeness has a heightened meaning when the
thus be abandoned and changed. The best and most missing Member is the head of the Judiciary and the
unforgettable example of this kind of change happened Court in the person of the Chief Justice.
in the United States when the US Supreme Court The separate realities that Section 15, Article VII
overturned the and Section 4(1) bring to the fore now confront us with
813 the question of prioritizing our constitutional values in
VOL. 615, March 17, 2010 813 terms of two provisions that effectively operate in their
De Castro vs. Judicial and Bar Council (JBC) separate spheres, but which conflict when they directly
ruling in Plessy v. Fergusson33 that upheld the confront one another. The direct question is: should we
constitutionality of racial segregation under the really implement Section 15 above everything else,
“separate but equal” doctrine. After half a century, the even at the expense of having an incomplete Supreme
US Court completely abandoned this ruling in the now
Court, or should we recognize that both provisions the President, the Vice President and Members of
should be allowed to operate within their own separate Congress. Because of this reposed trust on the
spheres with one provision being an exception to the Supreme Court as a body, reasons of partisanship can
_______________ hardly be a reason to systemically place the whole
Supreme Court under a ban on appointments during
33 163 U.S. 537 (1896).
34 347 U.S. 483 (1954). the election period.
814 Of course, partisanship is an objection that can
814 SUPREME COURT REPORTS ANNOTATED apply to individual Members of the Court and even to
De Castro vs. Judicial and Bar Council (JBC) the applicants for the position of Chief Justice. But
other, instead of saying that one provision should this is a different question that should not result in
absolutely prevail over the other? placing the system of appointments to the Court
What Valenzuela failed to consider, because it was within the coverage of the election ban;
looking at the disputed provisions from the prism of objections personal to individual Members and to
two RTC judges, is that the reasons for the application individual applicants are matters addressed to the
of Section 15, Article VII may not at all exist in JBC and to the final appointing authority—the
appointments to the Supreme Court. President. It is for reasons of these possible individual
In the first place, Section 4(1) covers only the objections that the JBC and even the Office of the
appointment of 15 Members, not in their totality, but President are open to comments and objections.
singly and individually as Members disappear from _______________
the Court and are replaced. Thus, the evil that 35 Aytona v. Castillo, No. L-19313, January 19, 1962, 4 SCRA 1.
the Aytona case35 sought to remove—mass midnight 815
appointments—will not be present. VOL. 615, March 17, 2010 815
Secondly, partisanship is hardly a reason that De Castro vs. Judicial and Bar Council (JBC)
would apply to the Supreme Court except when the
Members of the Court individually act in violation of Incidentally, the incumbent President is not up for
their oaths or directly transgress our graft and re-election by operation of the Constitution so that a
corruption laws. Let it be remembered that the partisanship objection in the President’s favor has no
Constitution itself has entrusted to the Court the final basis. If any, an objection personal to the Supreme
and definitive recourse in election contest involving Court applicant may be raised because of perceived
bias or partisanship in favor of the President’s choice The Chief Justice is the head of the Judiciary in the
in the elections. This would be a meaningless same manner that the President is the Chief Executive
objection, however, if it is considered that the same and the Senate President and the Speaker of the
objection can be raised against a Supreme Court House head the two Houses of Congress. The
nominee appointed by the incoming President; this Constitution ensures, through clear and precise
new appointee will sit in judgment in the electoral provisions, that continuity will prevail in every branch
dispute that follows the presidential elections and can by defining how replacement and turnover of power
be chosen for bias towards the new President and his 816
party. In this sense, an objection on the basis of 816 SUPREME COURT REPORTS ANNOTATED
personal bias is not at all an appropriate consideration De Castro vs. Judicial and Bar Council (JBC)
when the issue is systemic in its application—the shall take place. Thus, after every election to be held
application of the election ban on appointments to in May, a turn over of power is mandated on the
Supreme Court appointments. following 30th of June for all elective officials.
In any case, the comments made on this point in the For the Supreme Court where continuity is by the
petitions are conjectural and speculative and can appointment of a replacement, the Constitution
hardly be the bases for adjudication on the merits. If requires that the replacement Member of the Court,
records of the Court will matter, the duly proven facts including the Chief Justice, should be appointed
on record about the immediately past Chief Justices within 90 days from the occurrence of the vacancy.
speak for themselves with respect to partisanship in This is the sense of urgency that the Constitution
favor of the sitting President. It is a matter of public imparts and is far different from the appointment of
record that Chief Justices Davide, Panganiban and the justices and judges of the lower courts where the
Puno did not try to please their respective incumbent requirement is 90 days from the JBC’s submission of
Presidents, and instead ruled in the way that the law, its list. This constitutional arrangement is what the
jurisprudence and the requirements of public interests application of Section 15, Article VII to the
dictated. appointment of Members of the Supreme Court will
The Mendoza petition presents some very displace.
compelling reasons why the Supreme Court, if not the The Peralta petition argues that the appointment of
whole Judiciary, should be exempt from the coverage a Chief Justice is not all that important because the
of the election ban that Section 15, Article VII imposes. law anyway provides for an Acting Chief Justice.
While this is arguably true, Peralta misunderstands
the true worth of a duly appointed Chief Justice. He is the first among equals—a primus inter pares—who
forgets, too, that a Supreme Court without a Chief sets the tone for the Court and the Judiciary, and who
Justice in place is not a whole Supreme Court; it will is looked up to on all matters, whether administrative
be a Court with only 14 members who would act and or judicial. To the world outside the Judiciary, he is
vote on all critical matters before it. the personification of the Court and the whole
The importance of the presence of one Member of Judiciary. And this is not surprising since, as Chief
the Court can and should never be underestimated, Justice, he not only chairs the Court en banc, but
particularly on issues that may gravely affect the chairs as well the Presidential Electoral Tribunal that
nation. Many a case has been won or lost on the basis sits in judgment over election disputes affecting the
of one vote. On an issue of the constitutionality of a President and the Vice-President. Outside of his
law, treaty or statute, a tie vote—which is possible in a immediate Court duties, he sits as Chair of the
14 member court—means that the constitutionality is Judicial and Bar Council, the Philippine Judicial
upheld. This was our lesson in Isagani Cruz v. DENR Academy and, by constitutional command, presides
Secretary.36 over the impeachment of the President.37 To be sure,
More than the vote, Court deliberation is the core of the Acting Chief Justice may be the ablest, but he is
the decision-making process and one voice less is not not the Chief Justice without the mantle and
only a vote less but a contributed opinion, an permanent title of the Office, and even his presence as
observation, or a cautionary Acting Chief Justice leaves the Court with one member
_______________ less. Sadly, this member is the Chief Justice; even with
an Acting Chief Justice, the Judiciary and the Court
36 400 Phil. 940; 347 SCRA 128 (2000).
817 remain headless.
VOL. 615, March 17, 2010 817 The intent of the framers of the Constitution to
De Castro vs. Judicial and Bar Council (JBC) extend to the Court a fixed period that will assure the
word less for the Court. One voice can be a big nation that the Court’s membership shall immediately
difference if the missing voice is that of the Chief be filled, is evidenced no less than by the
Justice. Constitutional Commission’s own deliberations where
Without meaning to demean the capability of an the following exchange took place:
Acting Chief Justice, the ascendancy in the Court of a
permanent sitting Chief Justice cannot be equaled. He
Mr. De Castro: I understand that our justices now should prevail. This is a very unusual approach in
in the Supreme Court, together with the Chief interpretation, particularly if the apparently
Justice, are only 11. conflicting provisions are from the Constitution—an
Mr. Concepcion: Yes. instrument that has painstakingly been deliberated
_______________ upon by the best and the brightest minds in the
country. For, the rule in constitutional interpretation
37 Constitution, Article XI, Section 2(6).
818 is that the constitution must be appreciated and
818 SUPREME COURT REPORTS ANNOTATED interpreted as one single instrument, with apparently
De Castro vs. Judicial and Bar Council (JBC) conflicting provisions reconciled and harmonized in a
Mr. De Castro: And the second sentence of this manner that will give all of them full force and effect.38
subsection reads: Any vacancy shall be Where, as in Valenzuela, the Chief Justice of the
filled within ninety days from the Supreme Court, no less, appeared to have given up the
occurrence thereof.” benefit of an immediate appointment of Members of
Mr. Concepcion: That is right. the Supreme Court, then extremely compelling reasons
Mr. De Castro: Is this a now a mandate to the must have driven the
_______________
executive to fill the vacancy.
Mr. Concepcion: That is right. That is borne out 38 See: Marcelino v. Cruz, No. L-42428, March 14, 1983, 121
of the fact that in the past 30 years, seldom SCRA 51.
has the Court had a complete complement. 819
This exchange, to my mind, removes any remaining VOL. 615, March 17, 2010 819
doubt about the framers’ recognition of the need to De Castro vs. Judicial and Bar Council (JBC)
always have a full Court. Court to its conclusion. I fully understood though the
b.3. Construction of the Disputed Provisions former Chief Justice’s conclusion in this case when I
A notable aspect of the Valenzuela ruling in the realized that he was not effectively ruling on Section
context of constitutional interpretation, is its 4(1) of Article VIII, and was in fact ruling on a case
conclusion that in a conflict between two provisions— involving lower court judges.
one in the Article on the Executive Department and For indeed, the reasons the former Chief Justice
the other an Article in the Judicial Department—one cited inValenzuela justify the application of the Section
of them should completely give way and the other 15, Article VII as against the rule on appointment of
lower court judges under Section 9, Article VIII. As I In contrast with this conclusion, an interpretation
have shown above, Section 9 does not impose a hard that Section 15, Article VII will similarly prevail over
and fast rule on the period to be observed, apparently Section 4(1), Article VIII is clearly misplaced. The
because the urgency of the appointment may not be as structure, arrangement
great as in the appointment of Members of the _______________
Supreme Court. The period for appointment can move
39 Mendoza petition, p. 3.
at the discretion of the JBC, although the exercise of 820
this discretion also carries its own butt-in and implicit 820 SUPREME COURT REPORTS ANNOTATED
limits. De Castro vs. Judicial and Bar Council (JBC)
The former Chief Justice’s weightier reason arose and intent of the Constitution and the public policy
from the Aytona decision where mass appointments reasons behind them simply speak against the
were recognized as an evil that could affect the interpretation that appointments of Members of the
integrity of our elections. Because of the number of Court should be subject to the election ban. These are
appointments that may currently be involved if all discussed above and need not be repeated here.
appointments to lower courts are allowed before the Principles of constitutional interpretation, too,
May 2010 election (around 537 vacancies at a 24.5% militate against an interpretation that would give
vacancy rate at the first and second level courts primacy to one branch of government over another in
according to the figures of the Mendoza petition)39 and the absence of very compelling reasons. Each branch of
the power and influence judges may exert over their government is in place for a particular reason and each
local communities, an exemption from the election ban one should be given every opportunity to operate to its
may indeed bring about (or at least give the fullest capacity and potential, again unless very
appearance of bringing about) the evils that the compelling reasons exist for the primacy of one over
framers of the Constitution and this Court itself the other. No such compelling reason so far exists or
sought to remedy under Section 15, Article VII and has been cited.
the Aytona decision, respectively. Based on the values that the disputed provisions
For this reason, I do not disagree embody, what we need to balance are the integrity of
with Valenzuela for its ruling on lower court judges; our electoral process and the protection needed to
Section 15, Article VII may indeed prevail over Section achieve this goal, as against the Judiciary’s need for
9, Article VIII. independence and strength enforced through a
Supreme Court that is at its full strength. To be sure, A. forthwith proceed with its normal
the nation and our democracy need one as well as the processes for the submission of the list of
other, for ultimately both contribute to our overall nominees for the vacancy to be created by the
national strength, resiliency, and stability. Thus, we retirement of Chief Justice Reynato S. Puno, to
must, to the extent possible, give force and effect to be submitted to the President on or before the day
both and avoid sacrificing one for the other. before the retirement of the Chief Justice;
To do this and to achieve the policy of insulating our B. in the course of preparing its list of
constitutional process from the evils of vote-buying, nominees, determine with certainty the
influence peddling and other practices that affect the nominees’ readiness to accept the nomination as
integrity of our elections, while at the same time well as the appointment they may receive from
recognizing the Judiciary’s and the nation’s need to the President, deleting from the list the nominees
have a full Supreme Court immediately after a who will refuse to confirm their full readiness to
vacancy occurs, Section 4(1) of Article VIII should be accept without conditions either their nomination
recognized as a narrow exception granted to the or their appointment, if they will be appointed;
Judiciary in recognition of its proven needs. This is a C. proceed with its normal processes for the
narrow exception as the election ban of Section 15, preparation of the lists for the vacancies for the
Article VII, shall apply with full force and effect on the lower courts, to be submitted to the Office of the
appointment of lower court justices and judges.821 President as soon as the election ban on
VOL. 615, March 17, 2010 821 appointments is lifted; and
De Castro vs. Judicial and Bar Council (JBC) D. in all other matters not otherwise falling
under the above, conduct itself in accordance
c. Guidelines for the Judicial and Bar with this Decision.
Council In light of all the foregoing, I vote to:
The resolution of the present dispute can only be 1. Dismiss the De Castro and Peralta petitions
complete if clear guidelines are given to the JBC on and for not being justiciability and for prematurity.
how it shall conduct itself under the present 2. Dismiss the Soriano and the Tolentino petitions
circumstances pursuant to this Court’s ruling. The for lack of merit.
Court should therefore direct the JBC to:
3. Dismiss all petitions and motions for least three nominees of the Judicial and Bar Council
interventions supporting or opposing the above (JBC). On January 18, 2010 the JBC passed a
petitions.822 unanimous resolution2to start the process of filling up
822 SUPREME COURT REPORTS ANNOTATED the anticipated vacancy. Indeed, it invited applications
De Castro vs. Judicial and Bar Council (JBC) and nominations for the position through newspapers,
later announced the names of candidates to it, and
4. Grant the Mendoza petition and declare for the finally received endorsements in favor of and
JBC’s guidance that: oppositions against such candidates.
a. Section 4(1), Article VIII is an exception to _______________
the coverage of Section 15, Article VII; 1 Article VIII, Sec. 9. The members of the Supreme Court and
appointments to the Supreme Court are not judges of lower courts shall be appointed by the President from a list
subject to the election ban under Section 15, of at least three nominees prepared by the Judicial and Bar Council
Article VII so that the JBC can submit its list of for every vacancy. Such appointments need no confirmation. For the
lower courts, the President shall issue the appointments within
nominees for the expected vacancy for the ninety days from the submission of the list.
retirement of Chief Justice Reynato S. Puno, on 2 http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf.
or before the vacancy occurs, for the President’s 823
consideration and action pursuant to Section VOL. 615, March 17, 2010 823
4(1), Article VIII; De Castro vs. Judicial and Bar Council (JBC)
b. Reiterate our ruling in In re: Valenzuela Ordinarily, the JBC would already be holding
and Vallarta that no other appointments of public interviews of candidates to the office to be
judges of the lower courts can be made within the followed by a deliberation and the eventual submission
election ban period, pursuant to Section 15, of a shortlist of nominees to the President. The
Article VII. Constitution provides that any vacancy in the
Supreme Court “shall be filled within ninety days”
CONCURRING OPINION from its occurrence.3 Since the position of Chief Justice
will be vacant on May 17, 2010 when Chief Justice
ABAD, J.: Puno shall have retired, the President has to fill up the
Chief Justice Reynato S. Puno will retire on May 17, vacancy during the period May 17 to August 15, 2010.
2010. Article VIII, Section 91of the 1987 Constitution
requires the President to choose his successor from at
But by some unforeseen happenstance, that vacancy
(May 18) will occur during the period of the midnight Issues to be addressed
appointments ban (March 10 to June 30), a ban Quite ably, the majority opinion already addressed
intended to prevent an outgoing president from buying the several issues raised by the petitions and the
votes using such appointments or robbing the oppositions to them. I join that opinion and would add
incoming president of the opportunity to fill up a few thoughts on what I believe to be the key issues in
important positions with people he will be working this case, namely:
with. Article VII, Section 15, of the Constitution 1. Whether or not the case presents an actual
prohibits the outgoing President from making controversy that is ripe for this Court’s adjudication;
appointments “two months immediately before the and
next presidential elections and up to the end of his 2. Whether or not the Constitutional ban on
term,” except temporary appointments in the interest midnight appointments applies to the judiciary.
of public service or public safety.4 The midnight
appointments ban this year is in force from March 10 Discussion
(two months before the elections) to June 30 (the end
of the incumbent President’s term), a period of 112 One. Invoking the fundamental rule that judicial
days. power is the duty of the courts of justice to settle
_______________ “actual controversies involving rights which are legally
demandable and enforceable,” the National Union of
3 Article VIII, Section 4(1). The Supreme Court shall be composed People’s Lawyers (NUPL) claims that no actual
of a Chief Justice and fourteen Associate Justices. It may sit en
banc or, in its discretion, in divisions of three, five, or seven
controversy exists in this case as to warrant judicial
Members. Any vacancy shall be filled within ninety days from determination of the issue of whether or not the
the occurrence thereof. Constitutional ban on midnight appointment applies to
4 Article VII, Sec. 15. Two months immediately before the next the judiciary since the JBC has not as yet prepared a
presidential elections and up to the end of his term, a President or
Acting President shall not make appointments, except temporary
final list of its nominees to current vacancies in the
appointments to executive positions when continued vacancies courts. BAYAN, COURAGE, KADAMAY, LFS,
therein will prejudice public service or endanger public safety. NUSTP, CEGP, SCMP, and BAYAN claim that what
824 the petitioners seek is a mere advisory opinion from
824 SUPREME COURT REPORTS ANNOTATED the Court, something that it has no power to give.
De Castro vs. Judicial and Bar Council (JBC)
The Constitution provides that judicial power is the can submit its list of nominees to the incumbent
duty of the courts of justice to settle actual President during the ban on midnight appointments
controversies involving rights which are legally that sets in on March 10. Indeed, the JBC said in its
demandable and enforceable.5 The court will not act on resolution of January 18, 2010 that, while it would
an action for damages for a slap on the plaintiff’s face start the selection process, it was yet to determine
if the defendant is still to deliver that slap. The law when and to whom to submit its shortlist of nominees.
must have established a right which has in fact been It saw an apparent conflict between the provisions of
violated. Section 4(1) of Article VIII (the ban on midnight
Here, the Constitution imposes on the JBC the duty appointments) and Section 15 of Article VII (the need
to recommend to the President those whom he can to fill up the vacancy within 90 days of its occurrence)
appoint to the of the 1987 Constitution.
_______________ Eventually, after taking some steps in the selection
process, the JBC held the process in abeyance, unable
5 Article VIII, Section 1, 1987 Constitution of the Philippines.
825 to decide as yet when and to whom it will submit its
VOL. 615, March 17, 2010 825 list of nominees for the position that Chief Justice
De Castro vs. Judicial and Bar Council (JBC) Puno will vacate on May 17, 2010. Under the
judiciary when a vacancy occurs.6 In the case of a circumstances, the controversy is already ripe for
vacancy in the Supreme Court, it is implicit that the adjudication for, assuming that the ban on midnight
JBC must submit a list of at least three nominees to appointment does not apply to the judiciary as the
the President on time to enable him to fulfill his duty petitioners would have it, then the JBC’s suspension of
to fill up the vacancy within 90 days after it its selection process would constitute a violation of its
occurs.7 Those who have an interest in the fulfillment duty under the Constitution to carry on with such
of this duty has the right to insist that it be done. process until it is able to submit the desired list to the
But the JBC appears reluctant or unwilling to incumbent President. If my subdivision neighbor
perform its above duty in the case of the forthcoming begins constructing a shed in his yard and tells me
_______________
May 17, 2010 vacancy in the office of the Chief Justice.
It expressed a desire to determine, initially, from views 6 Id., Section 5.
submitted to it by others and, later, from what the 7 Id., Section 9 in relation to Section 4(1).
Court might provide it by way of guidance, whether it 826
826 SUPREME COURT REPORTS ANNOTATED vacancy within the period required by the
De Castro vs. Judicial and Bar Council (JBC) Constitution.
that he has ordered 20 pigs to raise there, I will not Alternatively, assuming that an actual controversy
wait till the pigs arrive and defecate before I bring an has not yet developed as to warrant action on the
action to abate a nuisance. petitions filed in this case, the Court has the authority,
As mandated by the Constitution, the incumbent as an incident of its power of supervision over the
President should be able to fill up the vacancy within JBC,8 to see to it that the JBC faithfully executes its
90 days of its occurrence. This presupposes that the duties as the Constitution requires of it.
incumbent President should have the list on or before In its Resolution of January 18, 2010, the JBC
May 17, the day the vacancy occurs, so she can comply confesses uncertainty regarding when and to whom to
with her duty under the Constitution to make the submit its list of nominees for the May 17, 2010
appointment within the 90-day period provided by it. vacancy in the office of Chief
Of course, the circumstances is such that the period for _______________
appointing the Chief Justice’s replacement will span 8 Id., Section 8(1).
the tenure of the incumbent President (for 44 days) 827
and her successor (for 46 days), but it is the VOL. 615, March 17, 2010 827
incumbent’s call whether to exercise the power or pass De Castro vs. Judicial and Bar Council (JBC)
it on. Justice in view of the apparently conflicting provisions
Again, assuming as correct petitioners’ view that of the Constitution. Further, in its comment in this
the ban on midnight appointments does not apply to case, the JBC declared that it “will be guided by [the
the judiciary, the JBC’s suspension of its selection Court’s] decision in these consolidated Petitions and
process places it in default, given its above duty in Administrative Matter.” Consequently, as an incident
regard to the submission of its list of nominees to the of its Constitutional duty to supervise the JBC, the
President within a time constraint. Under the same Court can, to insure JBC’s faithful compliance with the
assumption, moreover, the petitioner citizens and Constitution, resolve the issue of whether or not the
members of the bar would have a demandable right or ban on midnight appointments applies to the judiciary.
interest in having the JBC proceed with its selection Two. Citing “In Re: Appointments dated March 30,
process and submit its list of nominees in time for the 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B.
incumbent President or her successor to fill up the Vallarta as Judges of the Regional Trial Court of
Branch 62, Bago City and of Branch 24, Cabanatuan 828 SUPREME COURT REPORTS ANNOTATED
City,”9 the oppositors claim that the ban on midnight De Castro vs. Judicial and Bar Council (JBC)
appointments applies to the judiciary. After examining But the above assumes that the outgoing incumbent
the reasons for the two apparently conflicting President can make appointments in the judiciary
provisions, the Court said that the need to fill up during the period of the ban “to buy votes” and commit
vacancies in the judiciary within the period the “similar evils” like denying the incoming President the
Constitution provides must yield to the ban on opportunity to consider other appointees in the light of
Presidential midnight appointments. The Court his new policies, a point former President Diosdado
explained this ruling: Macapagal made inAytona v. Castillo.11
Considering the respective reasons for the time The fact, however, is that while the President can
frames for filling vacancies in the courts and the freely choose to appoint any person who meets the
restriction on the President’s power of appointment, basic qualifications for a position in the Executive
it is this Court’s view that, as a general proposition,
Department, he does not have such freedom of choice
in case of conflict, the former should yield to the
latter. Surely, the prevention of vote-buying and
when it comes to appointments in the judiciary. In the
similar evils outweighs the need for avoiding delays latter case, the Constitution provides in Section 9 of
in filling up of court vacancies or the disposition of Article VIII that the President can choose his
some cases. Temporary vacancies can abide the appointee only from a JBC short list of its nominees.
period of the ban which, incidentally and as earlier Sec. 9. The Members of the Supreme Court and
pointed out, comes to exist only once in every six judges of lower courts shall be appointed by the
years. Moreover, those occurring in the lower courts President from a list of at least three nominees
can be filled temporarily by designation. But prepared by the Judicial and Bar Council for every
prohibited appointments are long-lasting and vacancy. x x x
permanent in their effects. They may, as earlier This restriction on the President’s appointing power
pointed out, in fact influence the results of elections is not a small matter.
and, for that reason, their making is considered an First. The JBC from whose list of nominees the
election offense.10 President will make his appointment is under the
_______________
supervision of the Supreme Court itself. Indeed, it is
9 358 Phil. 896; 298 SCRA 408 (1998). headed by the Chief Justice as its presiding officer.
10 Id., at pp. 915-916; p. 426. The JBC is not a subordinate agency of the Executive
828
Department; the President has neither control nor candidate is queried about his qualifications,
supervision over it. affiliations, and other personal circumstances.
Second. The JBC makes its own vetting rules and Sixth. The names in the list submitted by the JBC
procedures. The Constitution of course provides for the to the President are not negotiable. On July 24, 2009
qualifications of members of the judiciary12 but this has the Executive Secretary returned to JBC its list of six
not prevented the JBC from establishing grounds for nominees for two vacancies in the Court, requesting
disqualifying candi- additional names that the incumbent President can
_______________ choose from. Obviously, the President was unhappy
with the names on the list. But the JBC declined the
11 4 SCRA 1, 8 (1962).
12 Section 7(1) and (3), Article VIII, 1987 Constitution of the request, the pertinent portion of which reads:
Philippines. “We wish to inform you that the six (6) nominees of
829 the JBC were chosen after a long and thorough
VOL. 615, March 17, 2010 829 selection process. Among others, their public and
De Castro vs. Judicial and Bar Council (JBC) private track record, experience and possession of
dates, such as the pendency of administrative or the required qualities of competence, integrity,
probity and independence were carefully studies and
criminal cases against them.
considered by the JBC. They are all highly qualified
Third. The JBC announces any vacancy in the
for the two (2) vacancies in the Supreme Court and
judiciary in newspapers of large circulations. Secret indeed, your letter of July 26, 2009 does not assail
recruitment and trading for votes in the coming and hence, concedes the qualification of the six (6)
elections is out. nominees.
Fourth. Anyone who has the basic qualifications can With due respect, the JBC cannot acquiesce to
apply for a vacancy or be nominated to it. Thus, the your request to expand the short list of nominees
opportunity to be recommended by the JBC for submitted to your office. The decision whether to
appointment is open or otherwise unrestricted. include three or more than three name in the short
Political connection is not a consideration that the JBC list of the nominees exclusively belongs to the JBC. It
entertains in short listing its nominees. is one of the important innovations in the
830
Fifth. The JBC invites the public to comment on or 830 SUPREME COURT REPORTS ANNOTATED
submit opposition to the nomination of candidates to a
De Castro vs. Judicial and Bar Council (JBC)
vacancy. And it holds public hearings in which each
1987 Constitution designed to depoliticize Constitutional check on abuses of the Executive
appointments in the Judiciary and promote its Department.
independence. This discretion given to the JBC is the The proposition that a Chief Justice will always be
lynchpin of its autonomyand it cannot be beholden to the President who appoints him is a myth.
compromised in the tiniest degree without impairing
Former President Estrada appointed Chief Justice
the delicate check and balance in the appointment of
Hilario G. Davide, Jr. who presided over his
members of the Judiciary installed in our
Constitution. The JBC, voting unanimously, cannot impeachment and administered the oath to the
therefore accede to your request in light of the incumbent President at the heels of EDSA II while
imperatives of the Constitution.” President Estrada still sat in Malacañang. Chief
Thus, the incumbent President was forced to choose Justices Artemio V. Panganiban and Reynato S. Puno
from the few names on the list that she had. voted against positions taken by the administration of
In reality, a President’s choice of Chief Justice is in the incumbent President who appointed them both to
fact first a choice of the JBC before it is that of the their position. These Chief
President. Easily there should at least be 20,000 831
VOL. 615, March 17, 2010 831
lawyers who are 40 years of age and have 15 years of
law practice of some kind who could qualify for Chief De Castro vs. Judicial and Bar Council (JBC)
Justice. Yet, the President can choose only from a list Justices like those before them were first choices of the
of three, four, or five lawyers that the JBC draws up JBC before they were those of the Presidents
for him. Consequently, the idea that the outgoing concerned.
incumbent President can take advantage of her I thus reiterate my concurrence with the main
appointment of a Chief Justice to buy votes in the decision.
coming elections is utterly ridiculous. She has no Petitions for certiorari, prohibition and mandamus
control over the JBC’s actions. dismissed, while petition in AM No. 10-2-5-SC granted.
Further, the idea that the incoming President Notes.—Not all “midnight” appointments are
should have the opportunity to choose a Chief Justice invalid—each appointment must be judged on the
who will support his policies does not also make sense. basis of the nature, character, and merits of the
The Supreme Court that the Chief Justice heads is not individual appointment and the circumstances
a support agency under the President. One of the surrounding the same. It is only when the
functions of the Supreme Court is to provide a appointments were made en masse by the outgoing
administration and shown to have been made through
hurried maneuvers and under circumstances
departing from good faith, morality, and propriety that
the Supreme Court has struck down “midnight”
appointments. (Sales vs. Carreon, 515 SCRA 597
[2007])
The constitutional prohibition on so-called midnight
appointments, specifically, those made within two (2)
months immediately prior to the next presidential
elections, applies only to the President or Acting
President. (Quirog vs. Aumentado, 570 SCRA 582
[2008])
Appointments are banned prior to the elections to
ensure that partisan loyalties will not be a factor in
the appointment process, and to prevent incumbents
from gaining any undue advantage during the
elections. (Nazareno vs. City of Dumaguete, 602 SCRA
578 [2009])
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