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Hannah Cris A. Echavez gorgeous hannah Arturo M. De Castro vs JBC & Pres. Gloria Macapagal-Arroyo G. . !o.

"#"$$% March "&' %$"$


(acts) These cases trace their genesis to the controversy that has arisen from the forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after the presidential election. nder !ection "#1$, in relation to !ection %, &rticle '(((, that )vacancy shall *e filled +ithin ninety days from the occurrence thereof, from a )list of at least three nominees prepared *y the Judicial and -ar Council for every vacancy., .ven *efore the event actually happens, it is giving rise to many legal dilemmas. May the incum*ent President appoint his successor, considering that !ection 1/, &rticle '(( #.0ecutive 1epartment$ of the Constitution prohi*its the President or &cting President from ma2ing appointments +ithin t+o months immediately *efore the ne0t presidential elections and up to the end of his term' e0cept temporary appointments to e0ecutive positions +hen continued vacancies therein +ill pre3udice pu*lic service or endanger pu*lic safety4

Political Law Consti1


1%@A further sho+ that the filling of a vacancy in the !upreme Court +ithin the %0Bday period +as a true mandate for the President. Moreover, the usage in !ection "#1$, &rticle '((( of the +ord shall C an imperative, operating to impose a duty that may *e enforcedC should not *e disregarded. There*y, !ections "#1$ imposes on the President the imperative duty to ma2e an appointment of a Mem*er of the !C +ithin %0 days from the occurrence of the vacancy. The failure *y the President to do so +ill *e a clear diso*edience to the Constitution. The %0Bday limitation fi0ed in !ection "#1$, &rticle '((( for the President to fill the vacancy in the !C +as undou*tedly a special provision to esta*lish a definite mandate for the President as the appointing po+er, and cannot *e defeated *y mere 3udicial interpretation in &alen'uela to the effect that !ection 1/, &rticle '(( prevailed *ecause it +as )couched in stronger negative language., !uch interpretation even turned out to *e con3ectural, in light of the records of the Constitutional Commission8s deli*erations on !ection " #1$, &rticle '(((. Do+ &alen'uela 3ustified its pronouncement and result is hardly +arranted. &ccording to an authority on statutory construction5 xxx the court should seek to avoid any conflict in the provisions of the statute by endeavoring to harmoni'e and reconcile every part so that each shall be effective. #t is not easy to draft a statute, or any other writing for that matter, which may not in some manner contain conflicting provisions. (ut what appears to the reader to be a conflict may not have seemed so to the drafter. )ndoubtedly, each provision was inserted for a definite reason. *ften by considering the enactment in its entirety, what appears to be on its face a conflict may be cleared up and the provisions reconciled. !onse+uently, that construction which will leave every word operative will be favored over one which leaves some word or provision meaningless because of inconsistency. (ut a word should not be given effect, if to do so gives the statute a meaning contrary to the intent of the legislature. *n the other hand, if full effect cannot be given to the words of a statute, they must be made effective as far as possible. ,or should the provisions of a statute which are inconsistent be harmoni'ed at a sacrifice of the legislative intention. #t may be that two provisions are irreconcilable- if so, the one which expresses the intent of the law.makers should control. And the arbitrary rule has been fre+uently announced that where there is an irreconcilable conflict between the different provisions of a statute, the provision last in order of position will prevail, since it is the latest expression of the legislative will. *bviously, the rule is subject to deserved criticism. #t is seldom applied, and probably then only where an irreconcilable conflict exists between different sections of the same act, and after all other means of ascertaining the meaning of the legislature have been exhausted. /here the conflict is between two statutes, more may be said in favor of the rule0s application, largely because of the principle of implied repeal. &alen'uela ar*itrarily ignored the e0press intent of the Constitutional Commission to have !ection " #1$, &rticle '((( stand independently of any other provision, least of all one found in &rticle '((. (t further ignored that the t+o provisions had no irreconcila*le conflict, regardless of !ection 1/, &rticle '(( *eing couched in the negative. &s 3udges, +e are not to unduly interpret, and should not accept an interpretation that defeats the intent of the framers. Conse6uently, prohi*iting the incum*ent President from appointing a Chief Justice on the premise that !ection 1/, &rticle '(( e0tends to appointments in the Judiciary cannot *e sustained. & misinterpretation li2e &alen'uela should not *e allo+ed to last after its false premises have *een e0posed. (t +ill not do to merely distinguish &alen'uela from these cases, for the result to *e reached herein is entirely incompati*le +ith +hat &alen'uela decreed. Conse6uently, &alen'uela no+ deserves to *e 6uic2ly sent to the dust*in of the un+orthy and forgetta*le. Ee reverse &alen'uela. econd. !ection 1/, &rticle '(( does not apply as +ell to all other appointments in the Judiciary. There is no 6uestion that one of the reasons underlying the adoption of !ection 1/ as part of &rticle '(( +as to eliminate midnight appointments from *eing made *y an outgoing Chief .0ecutive in the mold of the appointments dealt +ith in the leading case of Aytona v. !astillo. (n fact, in &alen'uela, the Court so o*served, stating that5 000 it appears that !ection 1/, &rticle '(( is directed against t+o types of appointments5 #1$ those made for *uying votes and #2$ those made for partisan considerations. The first refers to those appointments made +ithin the t+o months preceding a Presidential election and are similar to those +hich are declared election offenses in the ?mni*us .lection Code, vi'.5 000 The second type of appointments prohi*ited *y !ection 1/, &rticle '(( consists of the soBcalled )midnight, appointments. (n Aytona v. !astillo , it +as held that after the proclamation of 1iosdado Macapagal as duly elected President, President Carlos P. Farcia, +ho +as defeated in his *id for reelection, *ecame no more than a )careta2er, administrator +hose duty +as to )prepare for the orderly

*ssue) Hel+) atio) Prohi,ition un+er -ection ".' Article /** +oes not apply to appoint0ents to 1ill a vacancy in the -C or to other appoint0ents to the Ju+iciary T+o constitutional provisions are seemingly in conflict. The first, !ection 1/, &rticle '(( #.0ecutive 1epartment$, provides5
Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments , except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. The other, !ection " #1$, &rticle '((( #Judicial 1epartment$, states5 Section 4. (1). The upreme !ourt shall be composed of a !hief "ustice and fourteen Associate "ustices. #t may sit en banc or in its discretion, in division of three, five, or seven $embers. Any vacancy shall be filled within ninety days from the occurrence thereof. (n the consolidated petitions, the petitioners, +ith the e0ception of !oriano, Tolentino and (nting, su*mit that the incum*ent President can appoint the successor of Chief Justice Puno upon his retirement on May 17, 2010, on the ground that the prohi*ition against presidential appointments under !ection 1/, &rticle '(( does not e0tend to appointments in the Judiciary. The Court agrees +ith the su*mission. %irst. &s can *e seen, Article /** is devoted to the .0ecutive 1epartment, and, among others, it lists the po+ers vested *y the Constitution in the President. The presi+ential po2er o1 appoint0ent is dealt +ith in -ections "3' ". an+ "4 of the &rticle. Article /*** is dedicated to the Judicial 1epartment and defines the duties and 6ualifications of Mem*ers of the !C, among others. -ection 35"6 an+ -ection # of this &rticle are the provisions specifically providing for the appointment of !C Justices. (n particular, -ection # states that the appointment of !C Justices can only *e made *y the President upon the su*mission of a list of at least three nominees *y the J-C7 -ection 35"6 of the &rticle mandates the President to fill the vacancy within 90 days from the occurrence of the vacancy. Ha+ the 1ra0ers inten+e+ to e7ten+ the prohi,ition containe+ in -ection ".' Article /** to the appoint0ent o1 Me0,ers o1 the -C' they coul+ have e7plicitly +one so . They could not have ignored the meticulous ordering of the provisions. They +ould have easily and surely +ritten the prohi*ition made e0plicit in !ection 1/, &rticle '(( as *eing e6ually applica*le to the appointment of Mem*ers of the !C in &rticle '((( itself, most li2ely in !ection " #1$, &rticle '(((. That such specification +as not done only reveals that the prohi*ition against the President or &cting President ma2ing appointments +ithin t+o months *efore the ne0t presidential elections and up to the end of the President8s or &cting President8s term does not refer to the Mem*ers of the !C. &lthough &alen'uela came to hold that the prohi*ition covered even 3udicial appointments, it cannot *e disputed that the &alen'uela dictum did not firmly rest on the deli*erations of the Constitutional Commission. There*y, the confirmation made to the J-C *y then !enior &ssociate Justice 9loren: 1. ;egalado of this Court, a former mem*er of the Constitutional Commission, a*out the prohi*ition not *eing intended to apply to the appointments to the Judiciary, +hich confirmation &alen'uela even e0pressly mentioned, should prevail. The records disclosed the e0press intent of the framers to enshrine in the Constitution, upon the initiative of Commissioner .ulogio <erum, )a command =to the President> to fill up any vacancy therein +ithin %0 days from its occurrence,, +hich even &alen'uela conceded. The e0changes during deli*erations of the Constitutional Commission on ?cto*er @,

Hannah Cris A. Echavez

gorgeous hannah

Political Law Consti1


there. (ndeed, the creation of the J-C +as precisely intended to deBpolitici:e the Judiciary *y doing a+ay +ith the intervention of the Commission on &ppointments. This insulating process +as a*sent from the Aytona midnight appointment. Third. &s earlier stated, the nonBapplica*ility of !ection 1/, &rticle '(( to appointments in the Judiciary +as confirmed *y then !enior &ssociate Justice ;egalado to the J-C itself +hen it met on March %, 1%%@ to discuss the 6uestion raised *y some sectors a*out the )constitutionality of 000 appointments, to the C& in light of the forthcoming presidential elections. De assured that )on the *asis of the #Constitutional$ Commission8s records, the election *an had no application to appointments to the C&., This confirmation +as accepted *y the J-C, +hich then su*mitted to the President for consideration the nominations for the eight vacancies in the C&. %ourth. ?f the 2H sections in &rticle '((, three # i.e., !ection 1", !ection1/, and !ection 1A$ concern the appointing po+ers of the President. !ection 1" spea2s of the po+er of the succeeding President to revo2e appointments made *y an &cting President, and evidently refers only to appointments in the .0ecutive 1epartment. (t has no application to appointments in the Judiciary, *ecause temporary or acting appointments can only undermine the independence of the Judiciary due to their *eing revoca*le at +ill. The letter and spirit of the Constitution safeguard that independence. &lso, there is no la+ in the *oo2s that authori:es the revocation of appointments in the Judiciary. Prior to their mandatory retirement or resignation, 3udges of the first and second level courts and the Justices of the third level courts may only *e removed for cause, *ut the Mem*ers of the !C may *e removed only *y impeachment. !ection 1A covers only the presidential appointments that re6uire confirmation *y the Commission on &ppointments. There*y, the Constitutional Commission restored the re6uirement of confirmation *y the Commission on &ppointments after the re6uirement +as removed from the 1%7H Constitution. Iet, *ecause of !ection % of &rticle '(((, the restored re6uirement did not include appointments to the Judiciary. !ection 1", !ection 1/, and !ection 1A are o*viously of the same character, in that they affect the po+er of the President to appoint. The fact that !ection 1" and !ection 1A refer only to appointments +ithin the .0ecutive 1epartment renders conclusive that !ection 1/ also applies only to the .0ecutive 1epartment. This conclusion is consistent +ith the rule that every part of the statute must *e interpreted +ith reference to the conte0t, i.e. that every part must *e considered together +ith the other parts, and 2ept su*servient to the general intent of the +hole enactment. (t is a*surd to assume that the framers deli*erately situated !ection 1/ between !ection 1" and !ection 1A, if they intended !ection 1/ to cover all 2inds of presidential appointments. (f that +as their intention in respect of appointments to the Judiciary, the framers, if only to *e clear, +ould have easily and surely inserted a similar prohi*ition in &rticle '(((, most li2ely +ithin !ection " #1$ thereof. %ifth. To hold li2e the Court did in &alen'uela that !ection 1/ e0tends to appointments to the Judiciary further undermines the intent of the Constitution of ensuring the independence of the Judicial 1epartment from the .0ecutive and <egislative 1epartments. !uch a holding +ill tie the Judiciary and the !C to the fortunes or misfortunes of political leaders vying for the Presidency in a presidential election. Conse6uently, the +isdom of having the ne+ President, instead of the current incum*ent President, appoint the ne0t CJ is itself suspect, and cannot ensure 3udicial independence, *ecause the appointee can also *ecome *eholden to the appointing authority. (n contrast, the appointment *y the incum*ent President does not run the same ris2 of compromising 3udicial independence, precisely *ecause her term +ill end *y June H0, 2010. ixth. The argument has *een raised to the effect that there +ill *e no need for the incum*ent President to appoint during the prohi*ition period the successor of CJ Puno +ithin the conte0t of !ection " #1$, &rticle '(((, *ecause any+ay there +ill still *e a*out "/ days of the %0 days mandated in !ection "#1$, &rticle '((( remaining. The argument is fla+ed, *ecause it is focused only on the coming vacancy occurring from Chief Justice Puno8s retirement *y May 17, 2010. (t ignores the need to apply !ection "#1$ to every situation of a vacancy in the !upreme Court. The argument also rests on the fallacious assumption that there +ill still *e time remaining in the %0Bday period under !ection "#1$, &rticle '(((. The fallacy is easily demonstra*le, as the ?!F has sho+n in its comment.

transfer of authority to the incoming President., !aid the Court5 )8he 1illing up o1 vacancies in i0portant positions' i1 1e2' an+ so space+ as to a11or+ so0e assurance o1 +eli,erate action an+ care1ul consi+eration o1 the nee+ 1or the appoint0ent an+ appointee9s :uali1ications 0ay un+ou,te+ly ,e per0itte+. But the issuance o1 ;.$ appoint0ents in one night an+ the planne+ in+uction o1 al0ost all o1 the0 in a 1e2 hours ,e1ore the inauguration o1 the ne2 Presi+ent 0ay' 2ith so0e reason' ,e regar+e+ ,y the latter as an a,use o1 Presi+ential prerogatives' the steps ta<en ,eing apparently a 0ere partisan e11ort to 1ill all vacant positions irrespective o1 1itness an+ other con+itions' an+ there,y to +eprive the ne2 a+0inistration o1 an opportunity to 0a<e the correspon+ing appoint0ents., &s indicated, the Court recogni:ed that there may +ell *e appointments to important positions +hich have to *e made even after the proclamation of the ne+ President. -uch appoint0ents' so long as they are =1e2 an+ so space+ as to a11or+ so0e assurance o1 +eli,erate action an+ care1ul consi+eration o1 the nee+ 1or the appoint0ent an+ the appointee>s :uali1ications'? can ,e 0a+e ,y the outgoing Presi+ent. &ccordingly, several appointments made *y President Farcia, +hich +ere sho+n to have *een +ell considered, +ere upheld. -ection ".' Article /** has a ,roa+er scope than the Aytona ruling. *t 0ay not unreasona,ly ,e +ee0e+ to conte0plate not only =0i+night? appoint0ents @ those 0a+e o,viously 1or partisan reasons as sho2n ,y their nu0,er an+ the ti0e o1 their 0a<ing @ ,ut also appoint0ents presu0e+ 0a+e 1or the purpose o1 in1luencing the outco0e o1 the Presi+ential election. ?n the other hand, the e0ception in the same !ection 1/ of &rticle '(( C allo+ing appointments to *e made during the period of the *an therein provided C is much narro+er than that recogni:ed in Aytona. The e0ception allo+s only the ma2ing of temporary appointments to executive positions +hen continued vacancies +ill prejudice public service or endanger public safety. ?*viously, the article greatly restricts the appointing po+er of the President during the period of the *an. Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on the PresidentGs po+er of appointment, it is this Court8s vie+ that, as a general proposition, in case of conflict, the former should yield to the latter. !urely, the prevention of voteB*uying and similar evils out+eighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases. Temporary vacancies can a*ide the period of the *an +hich, incidentally and as earlier pointed out, comes to e0ist only once in every si0 years. Moreover, those occurring in the lo+er courts can *e filled temporarily *y designation. -ut prohi*ited appointments are longBlasting and permanent in their effects. They may, as earlier pointed out, in fact influence the results of elections and, for that reason, their ma2ing is considered an election offense.

Fiven the *ac2ground and rationale for the prohi*ition in !ection 1/, &rticle '((, +e have no dou*t that the Constitutional Commission confined the prohi*ition to appointments made in the .0ecutive 1epartment. The framers did not need to e0tend the prohi*ition to appointments in the Judiciary, *ecause their esta*lishment of the J-C and their su*3ecting the nomination and screening of candidates for 3udicial positions to the unhurried and deli*erate prior process of the J-C ensured that there +ould no longer *e midnightappointments to the Judiciary. (f midnight appointments in the mold of Aytona +ere made in haste and +ith irregularities, or made *y an outgoing Chief .0ecutive in the last days of his administration out of a desire to su*vert the policies of the incoming President or for partisanship, the appointments to the Judiciary made after the esta*lishment of the J-C +ould not *e suffering from such defects *ecause of the J-C8s prior processing of candidates. (ndeed, it is a0iomatic in statutory construction that the ascertainment of the purpose of the enactment is a step in the process of ascertaining the intent or meaning of the enactment, *ecause the reason for the enactment must necessarily shed considera*le light on )the la+ of the statute,, i.e., the intent7 hence, the enactment should *e construed +ith reference to its intended scope and purpose, and the court should see2 to carry out this purpose rather than to defeat it. &lso, the intervention of the J-C eliminates the danger that appointments to the Judiciary can *e made for the purpose of *uying votes in a coming presidential election, or of satisfying partisan considerations. The e0perience from the time of the esta*lishment of the J-C sho+s that even candidates for 3udicial positions at any level *ac2ed *y people influential +ith the President could not al+ays *e assured of *eing recommended for the consideration of the President, *ecause they first had to undergo the vetting of the J-C and pass muster

Hannah Cris A. Echavez

gorgeous hannah

Political Law Consti1


.lectoral Tri*unal, the CJ is the Chairman of the Tri*unal. There *eing no o*stacle to the appointment of the ne0t CJ, aside from its *eing mandatory for the incum*ent President to ma2e +ithin the %0Bday period from May 17, 2010, there is no 3ustification to insist that the successor of CJ Puno *e appointed *y the ne0t President. Distorically, under the present Constitution, there has *een no +ide gap *et+een the retirement and the resignation of an incum*ent CJ, on one hand, and the appointment to and assumption of office of his successor, on the other hand. Brit o1 mandamus +oes not lie against the JBC May the J-C *e compelled to su*mit the list of nominees to the President4 "andamus shall issue +hen any tri*unal, corporation, *oard, officer or person unla+fully neglects the performance of an act that the la+ specifically en3oins as a duty resulting from an office, trust, or station. (t is proper +hen the act against +hich it is directed is one addressed to the discretion of the tri*unal or officer. "andamus is not availa*le to direct the e0ercise of a 3udgment or discretion in a particular +ay. 9or mandamus to lie, the follo+ing re6uisites must *e complied +ith5 # a$ the plaintiff has a clear legal right to the act demanded7#b$ it must *e the duty of the defendant to perform the act, *ecause it is mandated *y la+7 # c$ the defendant unla+fully neglects the performance of the duty en3oined *y la+7 #d$ the act to *e performed is ministerial, not discretionary7 and # e$ there is no appeal or any other plain, speedy and ade6uate remedy in the ordinary course of la+. !ection @#/$ and !ection %, &rticle '(((, mandate the J-C to su*mit a list of at least three nominees to the President for every vacancy in the Judiciary. Do+ever, !ection "#1$ and !ection %, &rticle '(((, mandate the President to fill the vacancy in the !C +ithin %0 days from the occurrence of the vacancy, and +ithin %0 days from the su*mission of the list, in the case of the lo+er courts. The %0B day period is directed at the President, not at the J-C. Thus, the J-C should start the process of selecting the candidates to fill the vacancy in the !C before the occurrence of the vacancy. nder the Constitution, it is mandatory for the J-C to su*mit to the President the list of nominees to fill a vacancy in the !C in order to ena*le the President to appoint one of them within the %0Bday period from the occurrence of the vacancy. The J-C has no discretion to su*mit the list to the President after the vacancy occurs, *ecause that shortens the %0Bday period allo+ed *y the Constitution for the President to ma2e the appointment. 9or the J-C to do so +ill *e unconsciona*le on its part, considering that it +ill there*y effectively and illegally deprive the President of the ample time granted under the Constitution to reflect on the 6ualifications of the nominees named in the list of the J-C *efore ma2ing the appointment. The duty of the J-C to su*mit a list of nominees before the start of the President8s mandatory %0Bday period to appoint is ministerial, *ut its selection of the candidates +hose names +ill *e in the list to *e su*mitted to the President lies +ithin the discretion of the J-C. The o*3ect of the petitions for mandamus herein should only refer to the duty to su*mit to the President the list of nominees for every vacancy in the Judiciary, *ecause in order to constitute unla+ful neglect of duty, there must *e an un3ustified delay in performing that duty. 9or mandamus to lie against the J-C, therefore, there should *e an une0plained delay on its part in recommending nominees to the Judiciary, that is, in su*mitting the list to the President. The distinction *et+een a ministerial act and a discretionary one has *een delineated in the follo+ing manner5

!ection " #H$, &rticle '(( re6uires the regular elections to *e held on the second Monday of May, letting the elections fall on May @, at the earliest, or May 1", at the latest. (f the regular presidential elections are held on May @, the period of the prohi*ition is 11/ days. (f such elections are held on May 1", the period of the prohi*ition is 10% days. .ither period of the prohi*ition is longer than the full mandatory %0Bday period to fill the vacancy in the !C. The result is that there are at least 1% occasions #i.e., the differencebetween the shortest possible period of the *an of 10% days and the %0Bday mandatory period for appointments$ in +hich the outgoing President +ould *e in no position to comply +ith the constitutional duty to fill up a vacancy in the !C. (t is safe to assume that the framers of the Constitution could not have intended such an a*surdity. (n fact, in their deli*erations on the mandatory period for the appointment of !C Justices under !ection " #1$, &rticle '(((, the framers neither discussed, nor mentioned, nor referred to the *an against midnight appointments under !ection 1/, &rticle '((, or its effects on the %0Bday period, or vice versa. They did not need to, *ecause they never intended !ection 1/, &rticle '(( to apply to a vacancy in the !C, or in any of the lo+er courts. eventh. &s a matter of fact, in an extreme case, +e can even raise a dou*t on +hether a J-C list is necessary at all for the President C any President C to appoint a CJ if the appointee is to come from the ran2s of the sitting 3ustices of the !C. The provision clearly refers to an appointee coming into the !upreme Court from the outside, that is, a nonB mem*er of the Court aspiring to *ecome one. (t spea2s of candidates for the !upreme Court, not of those +ho are already mem*ers or sitting 3ustices of the Court, all of +hom have previously *een vetted *y the J-C. 8he Ju+iciary Act o1 "#3A The posture has *een ta2en that no urgency e0ists for the President to appoint the successor of CJ Puno, considering that the Judiciary &ct of 1%"@ can still address the situation of having the ne0t President appoint the successor. -ection "% o1 the Ju+iciary Act o1 "#3A states5
-ection "%. Vacancy in Office of hief !ustice. J #n case of a vacancy in the office of !hief "ustice of the upreme !ourt or of his inability to perform the duties and powers of his office, they shall devolve upon the Associate "ustice who is first in precedence, until such disability is removed, or another !hief "ustice is appointed and duly +ualified. This provision shall apply to every Associate "ustice who succeeds to the office of !hief "ustice.

The provision calls for an Acting CJ in the event of a vacancy in the office of the CJ, or in the event that the CJ is una*le to perform his duties and po+ers. (n either of such circumstances, the duties and po+ers of the office of the CJ shall devolve upon the &ssociate Justice +ho is first in precedence until a ne+ CJ is appointed or until the disa*ility is removed. Ee cannot agree +ith the posture. & revie+ of !ections "#1$ and % of &rticle '((( sho+s that the !C is composed of a CJ and 1" &ssociate Justices, +ho all shall *e appointed *y the President from a list of at least three nominees prepared *y the J-C for every
vacancy, +hich appointments re6uire no confirmation *y the Commission on &ppointments. Eith reference to the CJ, he or she is appointed *y the President as Chief Justice, and the appointment is never in an acting capacity. The e0press reference to a CJ a*hors the idea that the framers contemplated an Acting Chief Justice to head the mem*ership of the !C. ?ther+ise, they +ould have simply +ritten so in the Constitution. Conse6uently, to rely on !ection 12 of the Judiciary &ct of 1%"@ in order to forestall the imperative need to appoint the ne0t Chief Justice soonest is to defy the plain intent of the Constitution. 9or sure, the framers intended the position of CJto *e permanent, not one to *e occupied in an acting or temporary capacity. (n relation to the scheme of things under the present Constitution, !ection 12 of the Judiciary &ct of 1%"@ only responds to a rare situation in +hich the ne+ CJ is not yet appointed, or in +hich the incum*ent CJ is una*le to perform the duties and po+ers of the office. (t ought to *e remem*ered, ho+ever, that it +as enacted *ecause the CJ appointed under the 1%H/ Constitution +as su*3ect to the confirmation of the Commission on &ppointments, and the confirmation process might ta2e longer than e0pected. The appointment of the ne0t CJ *y the incum*ent President is prefera*le to having the &ssociate Justice +ho is first in precedence ta2e over. nder the Constitution, the heads of the <egislative and .0ecutive 1epartments are popularly elected, and +hoever are elected and proclaimed at once *ecome the leaders of their respective 1epartments. Do+ever, the lac2 of any appointed occupant of the office of CJ harms the independence of the Judiciary, *ecause the CJ is the head of the entire Judiciary. The CJ performs functions a*solutely significant to the life of the nation. Eith the entire !C *eing the Presidential

The distinction between a ministerial and discretionary act is well delineated. A #urely ministerial act or duty is one which an officer or tri$unal #erforms in a %iven state of facts, in a
#rescri$ed manner, in o$edience to the mandate of a le%al authority, without re%ard to or the e&ercise of his own 'ud%ment u#on the #ro#riety or im#ro#riety of the act done. #f the law im#oses a duty u#on a #u$lic officer and %ives him the ri%ht to decide how or when the duty shall $e #erformed, such duty is discretionary and not ministerial. The duty is ministerial only when the dischar%e of the same re(uires neither the e&ercise of official discretion or 'ud%ment.

&ccordingly, +e find no sufficient grounds to grant the petitions for mandamus and to issue a +rit of mandamus against the J-C. The actions for that purpose are premature, *ecause it is clear that the J-C still has until May 17, 2010, at the latest, +ithin +hich to su*mit the list of nominees to the President to fill the vacancy created *y the compulsory retirement of CJ Puno. Brit o1 prohi,ition +oes not lie against the JBC (n light of the foregoing dis6uisitions, the conclusion is inelucta*le that only the President can appoint the CJ.