REPUBLIC OF THE PHILIPPINES

SUPREME COURT
Manila

FERDINAND R. VILLANUEVA G.R. NO. 211833

Presiding Judge For: DECLARATION OF
MCTC-CompostelaNew Bataan, UNCONSTITUTIONALITY,
Compostela, Valley Province, PROHIBITION,INJUNCTION
Petitioner, and MANDAMUS

-versus

JUDICIAL AND BAR COUNCIL,

Respondent.
x---------------------------------------------------------------------------------------x
PETITIONERS MEMORANDUM

COMES NOW, Petitioner, Judge FERDINAND R. VILLANUEVA

after receipt of the ORDER dated ______, most respectfully submits this
MEMORANDUM and avers that:
Usually

PREFATORY STATEMENT

This case is a no-brainer. It simply asks for, not the construction, but
the application of the Constitutional requirements for judges. The
PHILIPPINE CONSTITUTION being SUPREME, there can be no reason to
extend the list (qualification); not even by a LONG-STANDING POLICY of
the JUDICIAL AND BAR COUNCIL (JBC).

Right or wrong, (long or short), the President, Congress, the Court, the
BOD and the LWUA have no choice but to follow the Constitution 1
[Italics supplied].

So should the JBC.

The constitution provides the Qualification of a Judge and additional

qualification maybe prescribed by congress:

The only question to be asked to determine the constitutionality of the

assailed JBC Policy is to asked if said policy is written in the
CONSTITUTION? if not was it prescribed by CIONGRESS?

The answer to both question is NO. by this alone this court should declare
the assailed policy UNCONSTITUTIONAL. Theres no need for further

1TAWANG MULTI-PURPOSE COOPERATIVE vs LA TRINIDAD WATER DISTRICT GR No. 166471

March 22, 2011

1
disquisition.

The respondent put the cart ahead of the horse. The Petitioner was
disqualified prior to the selection process. He was not even interviewed. The
Respondent JBC and Solicitor General (Solgen) COMMENTS IS NOT
RESPONSIVE. It already argues DISCRETION and LIST OF NOMINEES
as a result of the SELECTION process when the DISQUALIFICATION
HAPPENED AT THE RECRUITMENT PHASE (HE WAS
DISQUALIFIED EARLY IN THE PRE- NOMINATION STAGE BEFORE
INTERVIEW), PRIOR TO the SELECTION PROCESS. In the
determination of who meets the minimum qualification prescribed by the
constitution and congress which the respondent JBC refer s as Prima Facie
Qualification, This does not involved exercise of Respondent DISCRETION
as it is already set by the constitution and congress through statutes.

Looking at the profile of the Supreme Court Justices themselves, will

proved that the assailed unwritten five year policy was not followed and/ or
implemented uniformly which is JUST AND PROPER considering that it is
UNCONSTITUTIONAL:

1. Hon. Justice MARIANO C. DEL CASTILLO was appointed as

Municipal Trial Court Judge of San Mateo, Rizal in 1989. He was
promoted to Regional Trial Court of Angeles City in 1992 or short of
2 years by JBCs unwritten rule.

2. Hon. Justice ESTELA M. PERLAS-BERNABE was appointed as

Metropolitan Trial Court Judge of the Makati City, Br-66 in 1996. Four
years after, or one year short of the five-year JBC requirement, she was
promoted to Regional Trial Court, Makati City, Br-142 in 2000. She was
promoted to the CA on March 15, 2004, again below 5 years.

3. Hon. Chief Justice MARIA LOURDES P. A. SERENO was appointed

on August 16, 2010 as the 169th Justice and on August 24, 2012. More or
less two years later she was appointed as the 24th Chief Justice of the
Supreme Court.

Seven (7) out of the fifteen (15) Supreme Court Justices do not have
experience as a Judge. This will lead to the conclusion that the assailed
Policy is not indispensable.

NATURE OF THE CASE

This PETITION under Rules 63 and 65, assails the constitutionality of

the JBCs long-standing policy, requiring five (5) years of service from
Judges of municipal courts before they can qualify as applicants for regional
courts.
2
 Thus, petitions for certiorari and prohibition are appropriate remedies to
raise constitutional issues and to review and/or prohibit or nullify the acts
of legislative and executive officials [ARAULLO, ET.AL. vs AQUINO
ET.AL. GR Nos. 209287, ETC., July 1, 2014].

This is also similar to CHAVEZ vs JBC GR No. 202241 July 17, 2012
where this Honorable Court ruled:

Pursuant to the rule that the nature of an action is determined by the

allegations therein and the character of the relief sought, the Court views
the petition as essentially an action for declaratory relief under Rule 63 of
the 1997 Rules of Civil Procedure. xxx

At any rate, due to its serious implications, not only to government

processes involved but also to the sanctity of the Constitution, the Court
deems it more prudent to take cognizance of it. After all, the petition is
also for prohibition under Rule 65 seeking to enjoin Congress from
sending two (2) representatives with one (1) full vote each to the JBC.

It is filed directly with this Court, considering that the main issue is
purely legal and the Chairperson of the JBC is the Chief Justice of the
Supreme Court. Its resolution is of transcendental importance not only for
the Applicant- Petitioner and the rest of aspiring municipal judges but also
for the INTEGRITY of this Honorable Court whose members, HAVE NOT
COMPLIED with the JBCs 5 year-service as above mentioned.

FACTS OF THE CASE

Petitioner had been in the practice of law for almost 12 years, the last
1 year and 8 months of which were spent in the judiciary as Presiding Judge
of the Municipal Circuit Trial Court of Compostela-New Bataan when on
September 27, 2013 he filed his APPLICATION through electronic mail for
the position of PRESIDING JUDGE in the following courts: RTC-Br 31
(Tagum City); RTC-Br 13 (Davao City); and RTC-Br 6 (Prosperidad,
Agusan del Sur).

On December 18, 2013 the JBC informed 2 him that he could not be
considered an applicant. He was not listed as among those to be interviewed.
So he filed a PROTEST and a RECONSIDERATION which were
acknowledged by JBC in its letter 3 dated January 3, 2014; then in another,
dated February 3, 2014, which became the subject of this PETITION:

Further to our letter dated 3 January 2014 we would like to inform

Your Honor that during its en banc meeting on 27 January 2014, the
Judicial and Bar Council (JBC) duly noted your letter and agreed to
maintain its long-standing policy of opening the chance for promotion to
second level courts to, among others, incumbent judges who served in
2 Annex A
3 Annex B Underscoring supplied.

3
 their current position for at least five (5) years. Hence, since Your Honor
has just been a judge for more than one year only, the JBC stood firm on
its decision of not including you yet in the list of applicants for the
Regional Trial Court (RTC), Branch 31, Tagum City; RTC Branch 13,
Davao City; and RTC, Branch 6, Prosperidad, Agusan del Sur.
[Underscoring supplied]

Nevertheless, with your permission, we shall keep your application

documents on file for future reference.

Very truly yours,

(Sgd) ANNALIZA S. TY-CAPACITE

JBC Executive Officer
Noted:

(Sgd)AURORA SANTIAGO LAGMAN

Acting Executive Committee Chairperson &
JBC Regular Member

ISSUES

The primary issue herein is WHETHER OR NOT THE JBCS 5-YR

REQUIREMENT IS CONSTITUTIONAL

DISCUSSION

NO, its not constitutional. It must be struck down.

But first the SUB-ISSUES. These were brought out by the

COMMENTS of Respondents. Although arguments in the Petition is re-
pleaded as REPLY thereon, the issues are herein reiterated for a
comprehensive resolution by this Honorable Court.

PROCEDURAL ISSUES

Sub-issue 1: Whether or not the primary issue could become subject of a

petition for declaratory relief considering that the breach was already
made (or that Petitioner was already denied as Applicant).

YES, when it concerns constitutionality. The issue must be squarely

resolved by this Honorable Court otherwise the JBCs long-standing policy,
unwritten at that, would continue to be enshrined, walking all over the
Constitution and demanding compliance when there should have been none:

xxx a law, otherwise unconstitutional, would lapse into constitutionality

by the mere failure of the proper party to promptly file a case to challenge
the same. (CARBONILLA ET.AL. vs BOARD OF AIRLINES

4
 REPRESENTATIVE GR No. 194276 September 14, 2011)

In Kilosbayan v. Guingona this Honorable Court brushed aside the hierarchy of courts
due to the importance of the issues therein to determine whether or not the branches
have kept themselves within the limits of the Constitution and the laws and that they
have not abused the discretion given to them (Association of Small Landowners in
the Philippines, Inc. v. Secretary of Agrarian Reform, SOURCE, citing Ex Parte Levitt,
303 US 633. (Emphasis supplied) 19 Macalintal v. Comelec, G.R No. 157013 (July 10,
2003). 20 Id. 21 See Uy v. Contreras, supra; Manalo v. Gloria, 236 SCRA 130 [1994];
People v. Court of Appeals, 301 SCRA 566 (1999). 22 232 SCRA 110.

In Chavez v. PEA-Amari , this Honorable Court had occasion to state: PEA and AMARI
The principle of hierarchy of courts applies generally to cases involving factual
questions. As it is not a trier of facts, the Court cannot entertain cases involving factual
issues. The instant case, however, raises constitutional issues of transcendental
importance to the public. The Court can resolve this case without determining any
factual issue related to the case. Also, the instant case is a petition for mandamus
which falls under the original jurisdiction of the Court under Section 5, Article VIII of
the Constitution. We resolve to exercise primary jurisdiction over the instant case.

Moreover, in Santiago v. Vasquez , this Honorable Court ruled that petitions for
certiorari, prohibition, or mandamus, though cognizable by other courts, may directly be
filed with the Supreme Court if the redress desired cannot be obtained in the appropriate
courts or where exceptional compelling circumstances justify availment of a remedy
within and calling for the exercise of our primary jurisdiction

Sub-issue 2: Whether or not certiorari and mandamus may lie.

YES. The Respondent unfortunately, misread the facts.

The arguments of the Respondent that certiorari is not proper remedy as they are not
Judicial or Quasi Judicial bodies is no longer availing.

Xx With respect to the Court, however, the remedies of certiorari and prohibition are
necessarily broader in scope and reach, and the writ of certiorari or prohibition may be
issued to correct errors of jurisdiction committed not only by a tribunal, corporation,
board or officer exercising judicial, quasi-judicial or ministerial functions but also to set
right, undo and restrain any act of grave abuse of discretion amounting to lack or excess
of jurisdiction by any branch or instrumentality of the Government, even if the latter
does not exercise judicial, quasi-judicial or ministerial functions. This application is
expressly authorized by the text of the second paragraph of Section 1, supra.

Thus, petitions for certiorari and prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit or nullify the acts of legislative and
executive officials.( Ma. Carolina Araullo Person Bagong Alyansang Makabayan, et al.
Vs. Benigno Aquino, et.al. , G.R. 209287, xxx G.R. Nos. 209287, 209135, 209136,
209155,209164, 209260,209442, 209517 & 209569 July 1, 2014)

The questioned act of the JBC is not that of making the shortlist but
that of excluding the Petitioner from becoming an Applicant. He has not
been considered for the written examination and the interview at all; was not
made part of the List of Applicants--- because according to JBC, he lacked 5
5
years in the service.

But this denial is at the early stage of the selection process. The JBC
Secretariat supposedly will ONLY receive the applications. Then, upon
what appears on the face, it will verify compliance with the long list of
requirements as published:

Transcript of Law School Records, Birth Certificate or any other proof of

age and citizenship, Clearances from NBI and Ombudsman, Police
Clearance from place of residence, Clearance and Certificate of Good
Standing from the IBP National Office, Certificate of Admission to the Bar
(with Bar Rating) Results of the medical examinations, Sworn Medical
Certificates, Income Tax Returns, SALN, sample decisions4

If the requirements are incomplete, the Applicants will not be considered for
interview. Otherwise, the Secretariat will prepare the list of Applicants for
publication.

Now, Respondent aptly described the JBCs duty to come up with

nominees as discretionary. So yes, the valid exercise thereof cannot be made
subject of a certiorari5 (mandamus).

On the other hand, to receive the applications, to verify compliance

with the published requirements, to prepare the list of applicants for
publication ---none of these require judgment. These acts in the early stage,
must be considered MINISTERIAL DUTIES such that, for JBC to exclude
the Petitioner when he has complied with what was published, JBC acted
beyond its duty and is subject to this Honorable Courts correction.

Furthermore, Petitioner with the Constitutional and statutory

requirements, had a clear legal right to EQUAL OPPORTUNITY in
employment and be CHOSEN alongside other Applicants who also met the
same standards. While the Respondent is right in saying that the opportunity
of appointment to Judicial Office is a privilege, and not a Judicially
enforceable right that maybe properly claimed by person6; the Respondent is
wrong in closing the door to this opportunity too soon.

By providing the standards for the RTC Judge, the Constitution is

essentially saying that those who meet these qualifications, have the RIGHT
to APPLY and be considered for the said opportunity. By adding 5-year
service qualification, the JBC is saying, it knows better than the
Constitution.

In summary, the JBC acted without or in excess of jurisdiction, or with

grave abuse of discretion amounting to lack or excess of Jurisdiction for the
following reason:

4 JBC ANNOUNCEMENT dated September 20, 2013

5 Page __ of ANSWER
6 Page ___ of ANSWER

6
 1. It is a violation of Art . Section 7 article VIII of the 1987 constitution . The
qualification of an RTC Judge is already set by the constitution and by congress;
2. Only the Congress was allowed by the constitution to prescribe additional
qualifications of judges of lower courts. The JBC is not a the Congress;
3. It is a violation of DUE Process. It is UNWRITTEN it was not published;
4.Respondents sometimes implement and sometimes did not implement the five year
service unwritten policy and deferred the implementation of a mandatory
provision of RA Section 10 R.A. 8557, February 26, 1998.xx only participants
who have completed the programs prescribed by the Academy and have
satisfactorily complied with all the requirements incident thereto may be
appointed or promoted to any position or vacancy in the Judiciary.

5. It is a violation of Sec. 3, Article XIII of the constitution on equality of

employment opportunities. The Petitioner was not even allowed to participate in
the selection process. He was interviewed or allowed to take examinations.

Sub-issue 3. Whether or not the JBC may be PROHIBITED.

YES, JBC may be prohibited and enjoined, not on its duty to

recommend but on its inclusion of a qualification (the 5-year service) which
is not provided by the Constitution. More discussion follows later.

Instead what the JBC could have done was to make the length of
service as one of the criteria and to assign points thereto. For example if the
applicant is a Judge for more than 5 years in lower court the points he gets is
5. If he has less than 5 years, he only gets one point. Or any other means by
which the years of experience as trial judge may be factored in the required
competence for the vacant position.

Definitely the JBC cannot disqualify the Applicant if he meets all the
requirements set by the constitution and by the congress, He should be
allowed to undergo the selection process .

II. SUBSTANTIAL ISSUE

1. The Challenged policy of JBC is unconstitutional.

ONLY THE CONSTITUTION AND THE CONGRESS CAN
PRESCRIBED QUALIFICATION OF A JUDGE IN REGIONAL TRIAL
COURT. The JBC is not the congress. they are not allowed to add to the
qualification of an RTC Judge either directly or indirectly IN THE GUISE
OF A LONG STANDING POLICY. Clearly its UNCONSTITUTIONL.

7
According to Respondent.

Formulating polies which streamline the selection process falls squarely

under the purview of the JBC.

The Respondent is mistaken.

THE POLICY IS NOT STREAMLINING BUT RATHER PRESCRIBING

ADDITIONAL QUALIFICATION. IN FACT THE PETITIONER WAS
DISQUALIFIED AND WAS NOT INCLUDED IN THE LIST OF
APPLICANTS WHO WILL BE INTERVIEWED BY THE JBC.

The POLICY must conform with the law and constitution. Thus even if the
formulation of the Policy in the selection process falls squarely with the JBC
this does not mean that they have blanket authority to formulate any Policy.
The policy should be in accordance with the law and the constitution. The
qualification is already prescribed by the constitution and statutes there is no
need for the Respondent to add or expand the same.

According to Respondent.

Based on the JBCs collective Judgment, those who have been judges of first
level courts of five (5) years are better qualified for promotion to second
level courts.

Petitioners Reply.

The conclusion that Judges of first level courts of five(5) years are better
qualified for promotion to second level courts. Is without basis.

The JBC should be reminded that experience or length of service as a Judge

is not the only criteria in the selection of Judges. This includes to quote in
their comment The quality and character of magistrate specifically the
constitutional requirements of integrity, probity, independence and
competence xx

The argument of respondent that Five years is considered as sufficient span

of time for one to acquire professional skills for next level court, declog the
dockets is erroneous.

WHY NOT TEN YEARS OR FIFTEEN YEARS? And why is it that other
applicants is not required to render service as a Judge in lower court before
they can be appointed? Does it mean they do not have professional skilss to
declog dockets?

The petitioner was able to reduce its docket to _______ for just one more
than year.
8
Respondent argued that: xxx A five year stint in the Judiciary can also
provide evidence of the integrity, probity, and independence of judges
seeking promotion.

Petitioners reply. It is not true JBC JBC Rule 009 provides how Integrity,
probity and independence is measure to wit: JBC RULE 009, Provides: 1)
Rule 4 procedure in determining INTEGRITY, 2) Rule 5 procedure to
determine Probity and independence, 3) Rule 6 Sound Physical, Mental and
emotional condition.

LENGTH OF SERVICE is not even mentioned in the determination of

INTEGRITY, PROBITY/ INDEFENDENCE AND COMPETENCY.

The five year stint in the judiciary cannot be an evidence of integrity, probity
and independence it only shows length of service.

Citing Section 8 Article VIII of the constitution. According to the Solicitor

General Petitioner failed to establish the unconstitutionality of the
questioned Policy. The SOLGEN erred.

The CONSTITUTIONAL PROVISION THAT WAS VIOLATED IS NOT

SECTION 8 ARTICLE VIII BUT SECTION 7 ARTICLE VIII. It is very
short clear and unambiguous to wit:
Sec 7 Article VIII of the constitution Sec 8 Article VIII of the
Constitution

1. No person shall be appointed Member of Section 8.

the Supreme Court or any lower collegiate
court unless he is a natural-born citizen of 1. A Judicial and Bar Council
the Philippines. A Member of the Supreme is hereby created under the
Court must be at least forty years of age, supervision of the Supreme Court
and must have been for fifteen years or composed of the Chief Justice as
more, a judge of a lower court or engaged ex officio Chairman, the
in the practice of law in the Philippines. Secretary of Justice, and a
representative of the Congress as
2. The Congress shall prescribe the ex officio Members, a
qualifications of judges of lower courts, representative of the Integrated
but no person may be appointed judge Bar, a professor of law, a retired
thereof unless he is a citizen of the Member of the Supreme Court,
Philippines and a member of the and a representative of the private
Philippine Bar. sector.
3. A Member of the Judiciary must be a 2. xx
person of proven competence, integrity,
probity, and independence. 3. xx
4. xx
PRESCRIBED BY CONGRESS
5. The Council shall have
The congress in accordance with the paragraph 2 the principal function of
of Section 7 of Article VIII prescribed the recommending appointees to
following additional qualifications for RTC the judiciary. It may exercise

9
Judges:
1.Section 15, BP 129 AN ACT
REORGANIZING THE JUDICIARY,
APPROPRIATING FUNDS THEREFOR, AND
FOR OTHER PURPOSES
Qualifications. No persons shall be appointed
Regional Trial Judge unless he is a natural-born
citizen of the Philippines, at least thirty-five years
of age, and for at least ten years, has been
engaged in the practice of law in the Philippines
or has held a public office in the Philippines
requiring admission to the practice of law as an
indispensable requisite.
2.Section 10 R.A. 8557, February 26, 1998 AN
ACT ESTABLISHING THE PHILIPPINE
JUDICIAL ACADEMY, DEFINING ITS
POWERS AND FUNCTIONS,
APPROPRIATING FUNDS THEREFOR, AND
FOR OTHER PURPOSES
such other functions and duties
as the Supreme Court may
assign to it.
ASSAILED POLICY
PRESCRIBED BY THE JBC:
Further to our letter dated 3
January 2014 we would like to
inform Your Honor that during its
en banc meeting on 27 January
2014, the Judicial and Bar Council
(JBC) duly noted your letter and
agreed to maintain its long-
standing policy of opening the
chance for promotion to second
level courts to, among others,
INCUMBENT JUDGES WHO
SERVED IN THEIR
CURRENT POSITION FOR AT
LEAST FIVE (5) YEARS.

As soon as PHILJA shall have been fully

organized with the composition of its Corps of
Professorial Lecturers and other personnel, only
participants who have completed the programs
prescribed by the Academy and have
satisfactorily complied with all the requirements
incident thereto may be appointed or promoted
to any position or vacancy in the Judiciary.

We have no quarrel on Section 8 Article VIII. What we challenged is the JBC

UNWRITTEN AND LONG STANDING POLICY that does not conform with the
CONSTITUTION AND STATUTES.

The only question to be answered , IS THE MINIMUM

QUALIFICATION PRESCRIBED BY THE ASSAILED POLICY OF FIVE
YEAR LENGTH OF SERVICE IN THE LOWER COURT IMPOSED FOR
INCUMBENT LOWER COURT JUDGES ONLY , IS IN ACCORDANCE
WITH WHAT IS PRESCRIBED BY THE C
ONSTITUTION AND CONGRESS(statutes) ? The only answer is NO.

The Solgen may be correct the respondent may set standards / criteria in
choosing its nominees. Subject only to the minimum qualification required
by the constitution and law.

Meaning the respondent is prohibited to DISQUALIFY APPLICANTS IF

HE/SHE MEETS THE MINIMUM QUALIFICATION. The respondent
should allow the petitioner to undergo the selection process and EVALUATE
or RATE its performance in accordance with the standards / criteria the

10
respondent has set. As discussed in the Petition the Respondent implement a
Policy not in accordance with the constitution and statutes and deferred the
mandatory requirement of completion of pre judicature program as provided
under Section 10 R.A. 8557, February 26, 1998

The Solgen erred. We are not comparing Judges with five years experience
and Judges with less than five years experience this is not the
QUALIFICATION that is provided by the constitution and by the
CONGRESS. The qualification is TEN YEARS PRACTICE OF LAW in the
PHILIPPINES. The constitution does not discriminate or classified what
kind of Practice be it as a Government lawyer or a Private Practice. Whether
as a Judge as a prosecutor, Public Attorney, a Judge or a combination as long
as if you add all this experience it will amount to ten(10) years practice.

As repeatedly argued length of service as a Judge is not among the

qualification prescribed by the constitution and the statutes. Length of
service as a Judge can be considered as standards / or criteria and maybe
assigned points it should not be the basis of disqualification.

The Solgen may again be correct in describing the power of appointment as

an essentially discretionary power and must be performed by the officer in
which it is vested according to his best lights, the only condition being that
the appointee should possess the qualification required by law.

In this case the petitioner possess the qualification required by the

constitution and statutes. But because JBC adds another qualification, the
petitioner was immediately disqualified. This what makes the assailed JBC
unwritten policy unconstitutional.

According to the Solgen , Vargas V. Rilloraza is not applicable. It is very

applicable. In Vargas V. Rilloraza it was the congress who adds another
ground for the disqualification of a Justice of the Supreme Court. In this case
it was the JBC who adds another qualification over and above what is
provided by the constitution and congress. Although in the above case it
does not involved Judicial Independence but JBC usurp the function of the
congress and violates the constitution.

The solgen is correct experience is only a consideration or factor in

determining competence, in fact the required minimum experience is ten
years practice of law in the Philippines and it includes experience as a Judge.
Therefore petitioner should not have been disqualified.

The solgen erred that JBC merely exercised it discretion with the
constitutional requirement and its rule that A Member of the Judiciary must
be of proven competence , integrity, probity and independence. The
Petitioner meets this requirement it is the same requirement that he passed
when he was appointed as a Judge in MCTC.

11
The letter of the JBC is very clear the cause of disqualification is not on
competence, integrity, probity and independence but because of the assailed
five year service in lower court for incumbent Judges policy to wit:

Further to our letter dated 3 January 2014 we would

like to inform Your Honor that during its en banc meeting
on 27 January 2014, the Judicial and Bar Council (JBC)
duly noted your letter and agreed to maintain its long-
standing policy of opening the chance for promotion to
second level courts to, among others, INCUMBENT
JUDGES WHO SERVED IN THEIR CURRENT
POSITION FOR AT LEAST FIVE (5) YEARS.

Hence, since Your Honor has just been a judge for more
than one year only, the JBC stood firm on its decision
of not including you yet in the list of applicants for
the Regional Trial Court (RTC), Branch 31, Tagum
City; RTC Branch 13, Davao City; and RTC, Branch 6,
Prosperidad, Agusan del Sur.

The SOLGEN JARDELIZA may have mistakenly equate his CASE when he
was disqualified because of question of INTEGRITY. (A.M. No. 14-07-01-
SC-JBC (Re: Nomination of Solicitor General Francis H. Jardeleza for the
Position of Associate Justice Vacated by Justice Roberto A. Abad),

In the case of petitioner he already passed all minimum qualification

including INTEGRITY THE SAME QUALIFICATION REQUIRED when
he was appointed as Judge in MCTC- Compostela-New Bataan. Now he
already meet the ten year practice of law but was not even included as
applicant because of the assailed policy.

SolGen Jardeleza secured four (4) out of the six (6) votes the same number
of votes that Judge Reynaldo B. Daway did. Yet, Judge Daway was included
in the nomination list that the Council submitted to the President, but
SolGen Jardeleza was not. Kudos to Solgen Jardeliza for standing in favor of
the Respondent he should not complain of what had happened to him. He is
now estopped from availing other remedies.

Solgen erred. The assailed policy is not reasonable. Experience should cover
all kinds of practice of law. It should not be limited to five years experience
as a lower court judge and should not be imposed only to incumbent lower
court judge.

Experience/ seniority is not everything other factors are considered in fact

in year 2007 JBC adopted the Points and survey system, so that the selection
will be objective and not subject to biases, whims and caprices.

The solgen belittled, under estimates, mocks and look upon the petitioner
to quote:

12
 Surely, at this point, decisions he rendered as MTC Judge are
still under review by the proper appellate courts. In all
probability, not one decision has reach the Supreme Court.

How about those who was appointed to the Judiciary who was never a Judge
and have never rendered a decision? It is an insult to the majority of the
Supreme Court Justices who did not have any experience as a Judge.

According to the Solgen there is no actual controversy. It is erroneous.

First, the subject of the controversy is the constitutionality of the long

standing unwritten Policy five year service as lower Court Judge

Second, the controversy is between two parties that have adverse interests.
The respondent refuse to qualify the Petitioners as applicants when the
petitioner meets the minimum qualification prescribed by the constitution
and congress.

Third, it is clear that Petitioner has a legal and substantive interest in the
implementation of the assailed Unwritten long standing policy of the
Respondent. Petitioner has adequately shown that, he is an applicant of the
vacant position in the RTC 31, Tagum City, RTC 13, Davao City and
,Branch 6, Properidad, Agusan del Sur was disqualified by the respondent
and was not considered as applicant.

Finally, the issue raised by respondent is ripe for judicial determination,

because litigation is inevitable for the simple and uncontroverted reason that
respondent was not included as applicants.

The petitioner was denied of his constitutional right to due process, right to
equal protection of laws and equal opportunity of employment in broader
category a violation of his constitutional right to LIBERTY. This are
constitutional right which is demandable, it is not a privilege BUT A RIGHT.
The arguments of the petitioner is not based on surmises and conjectures. He
was disqualified because of the assailed Policy.

The question of law is whether or not the is JBC allowed to add another
qualification? The answer is Plain and Simple. NO.

The Solgen argues that the said Policy is part of an internal guideline or
criteria in the selection and nomination of prospective appointees to the
second level courts. Hence, there is no need to published the same.

The problem here is that there is already a published Rule JBC-Rule 009 that
governs the recruitment and selection process of a Judge. The assailed policy
is not included in the Published Rules. It is UNWRITTEN. It is not only a
criteria but a DISQUALIFICATION. The policy affects all those who
applied for the position, they are not mere subordinates or JBC employees .
13
Since the Policy was not published or was included in the published Rules
the Petitioner has the first opportunity to know said policy when the JBC
informed him in a letter why he was disqualified. Thus, Logic dictates that
the petition is timely as it was filed immediately after the knowledge of the
UNWRITTEN POLICY.

According to the SolGen so long as a fair opportunity is available for all

applicants who are evaluated on the basis of their individual merits and
abilities, the questioned policy cannot be struck down as unconstitutional.

THERE IS NONE. There was no fair opportunity available to all applicants.

The door was closed immediately to the petitioner. He was not allowed to
participate in the selection process. He was not interviewed and was not able
to take the exams.

2. The challenged policy is not incidental to the

Exercise of the JBCs constitutional mandate.
According to the Respondent.

Petitioner is misguided. His stance was brought about by a grave mis-

appreciation of the nature of the authority of the JBC and its particular
policy on the manner of selection prescribed under the constitution.

Petitioners Reply. The Petitioner is not misguided nor committed grave mis-
appreciation of the nature of authority of the JBC.

The UNWRITTEN POLICY of five years service qualification for lower

court judges is not a valid exercise of the doctrine of subordinate legislation
or rule making power of the administrative bodies.

In exercise of delegated legislative power, involving no discretion as to what

law shall be, but merely authority to fix details in execution or enforcement
of a policy set out in law itself.

Requisites of a valid administrative regulation

a. its promulgation must be authorized by the legislature.

b. it must be promulgated in accordance with the prescribed procedure.
c. it must be reasonable

The promulgation is not authorized by law and the constitution. It is not

within the scope of the authority given by the constitution for the JBC to
add another qualification applicable to incumbent Judges in the Lower court.

14
The JBC is not authorize to set two standards. One standard is applicable to
all (the ten Year Practice of Law in the Philippines) and another standard
applicable only to applicants who are incumbent Judges.

The UNWRITTEN POLICY was not publish in violation of Due Process. It

was not implemented uniformly. It is selective.

The JBC policy is not an enforcement of the policy fixed by law. Rather a
violation of the constitution and the law where it only requires 10 years
practice of law. The law did not require another five years service in lower
courts for incumbent judges.

The respondent argues that.

In particular, the potential nominees must meet the minimum qualifications

provided under the constitution and relevant laws . For Judges of Regional
Trial Courts, the following are the qualifications: xxx A. Filipino
Citizenship, b) at least 35 years of age, c) membership in the Philippine Bar,
d) of proven competence, integrity, probity and independence an e) for at
least ten years, has been engaged in the practice of law in the Philippines, or
has held public office in the Philippines requiring admission to the practice
of law as an indispensable requisite.

Thus the JBC should excludes applicants and recommendees who do not
meet the constitutional and statutory qualifications.

Petitioners Reply.

The Petitioner meet ALL OF THE ABOVE QUALIFICATION. It is the

same QUALIFICATION that was required of him when he applied and was
appointed as MCTC Judge except that in MCTC the experience required is
only five years practice of law in the Philippines while in RTC Judge
position the required practice of law is ten(10) years.

WHY DID THEY EXCLUDE THE PETITIONER WHEN HE MEETS

ALL THE CONSTITUIONAL AND STATUTORY QUALIFICATIONS.

Under Rule 10 Sec. 1 of the JBC Rules once the applicants meet the PRIMA
FACIE QUALIFICATION the council will prepare the long list and
published in two(2) newspaper of general circulation.

The petitioner despite passing the Prima Facie qualification was not included
in the LONG LIST, in violation of the respondents own Rule.

Respondent argues:

The JBC also looks at other pertinent factors such as educational

15
preparation; professional experience; performance; and other
accomplishments, including the completion of the Pre-Judicature program of
the Philippines Judicial Academy. In the exercise of its sound discretion, the
JBC may exclude those who possess the minimum constitutional and
statutory requirements and include in the long list only those whose possible
appointment by president will best promote the efficient and effective
administration of Justice.

Petitioners Reply.

The above argument is very dangerous. If JBC is allowed to exclude

applicants who meets the minimum qualification in the long list of
applicants to be interviewed and go through the selection process, it will
follow that the JBC is given a blanket authority to disregard the constitution
and the statutes.

In the Civil Service institutionalizing merit and fitness in the government

starts with exerting the best efforts to reach out all qualified candidates for
a particular vacancy and giving them equal opportunities to be objectively
assessed on the basis of their qualifications and other personal attributes.
It is then necessary to insulate the objectives of this Merit Selection Plan
from undue exercise of discretion by laying out the logical sequence of
steps to be observed in its implementation,

There are two phases in employment process. The recruitment and selection
process. In recruitment you consider all applicants who meet the minimum
qualification. This qualified applicants will undergo the selection process
through various interviews and tests. In this case the Petitioner was not even
considered as qualified applicant.

THE Respondent argues that:

COMPLETION OF PRE-JUDICATURE PROGRAM is only an other

pertinent factors.

Petitioners Reply.

The SolGen erred.

The COMPLETION OF PRE-JUDICATURE PROGRAM is a

STATUTORY MINIMUM QUALIFICATION it is mandatory as provided in
Section 10 R.A. 8557, February 26, 1998 AN ACT ESTABLISHING THE
PHILIPPINE JUDICIAL ACADEMY, DEFINING ITS POWERS AND
FUNCTIONS, APPROPRIATING FUNDS THEREFOR, AND FOR
OTHER PURPOSES to wit:

16
 As soon as PHILJA shall have been fully organized with the
composition of its Corps of Professorial Lecturers and other
personnel, only participants who have completed the programs
prescribed by the Academy and have satisfactorily complied with all
the requirements incident thereto may be appointed or promoted to
any position or vacancy in the Judiciary.

The representative of Congress in the JBC should insist the implementation

of the said law.

The actual practice is reverse or opposite of what is required by law.

APPOINT FIRST AND PHILJA conducted the ORIENTATION FOR NEW
APPOINTED JUDGES covering the same subject matter in the Pre-
Judicature Program. If PHILJA AND JBC will continue this practice, the
law should be amended and replace the PRE-JUDICATURE program to
POST- JUDICATURE PROGRAM.

Respondents argued that:

In sum the adoption of the policy (petitioners so- called 5-year requirement)
applied by the JBC to petitioners case is necessary and incidental to the
function conferred by the constitution on the JBC. Rather than unduly
enlarge the constitutional and statutory requirements for Judges of lower
courts, it simplifies or operationalizes them, xxx

Petitioners Reply.

The adoption of the so called 5-year requirement is clearly expanding or

adding to the minimum qualification imposed by the constitution and
statutes because it disqualify an applicant to be included in the selection
process.

The JBC could have assigned points to the number of years the applicant
served as Judge in the Lower Court it should not served as disqualification.

3. The Challenged policy does infringe the equal

protection clause. Xx the classification is offensive to
equal protection, as it does have a rational basis.
The Respondent Argues that:

Petitioner misunderstand the concept of equal protection in relation to the

challenged policy.

17
Petitioners reply:

The Petitioner is guided with Supreme Court Decision on concept of Equal

Protection Clause to wit:

Concept of the Equal Protection Clause

One of the basic principles on which this government was founded is

that of the equality of right which is embodied in Section 1, Article III of the
1987 Constitution. The equal protection of the laws is embraced in the
concept of due process, as every unfair discrimination offends the
requirements of justice and fair play. It has been embodied in a separate
clause, however, to provide for a more specific guaranty against any
form of undue favoritism or hostility from the government.
Arbitrariness in general may be challenged on the basis of the due process
clause. But if the particular act assailed partakes of an unwarranted
partiality or prejudice, the sharper weapon to cut it down is the equal
protection clause.[Citations omitted] (Louis Barok C. Biraogo, Vs. The
Phil Truth Commission of 2010, G.R. No. 192935, Re Edcel Lagman et.al.
vs. Ex. Sec Paquito Ochoa, et.al. ,G.R. No. 193036, Dec7, 2010)

THE POLICY IS UNWARRANTED PARTIALITY AND PREJUDICIAL.

Unwarranted because it is only the constitution and congress who should

prescribed the qualification of an RTC Judge. JBC has no power.

Prejudicial because the ten year practice of law prescribed by the

constitution should include experience as a Judge irregardless of number of
years be it one year or five years.

The Respondent argues that: The classification is not offensive to equal

protection, as it has rational basis.

The Policy is not reasonable. The petitioner is already almost 12 years in his
practice of law in the Philippines, all of which is rendered as a government
lawyer (a District Attorney of PPA- PDO-Southern Mindanao, a Public
Prosecutor of Compostela Valley Province and now as an MCTC Judge in
Compostela- New Bataan) . The Constitution only requires 10 years.

Notwithstanding what is the RATIONAL OR REASON behind the

POLICY if there is any, It remains unconstitutional because par 2, Sec 7 of
Art VIII of the 1987 Constitution Provides:

2. The Congress shall prescribe the qualifications of judges of lower courts, but no
person may be appointed judge thereof unless he is a citizen of the Philippines and a
member of the Philippine Bar.

IT IS VERY CLEAR IT IS NOT THE JBC WHO SHOULD PRESCRIBED

18
THE QUALIFICATION OF JUDGES.

The Supreme Court said.

True to its constitutional mandate, the Court cannot craft and tailor
constitutional provisions in order to accommodate all of situations no matter
how ideal or reasonable the proposed solution may sound. To the exercise of
this intrusion, the Court declines. (Francisco I. Chavez, vs JBC, G.R. No.
202242, April 16, 2013)

The Policy is unreasonable because it was not applied uniformly with all due
see the profile of the Supreme Court Justices themselves. Other applicants
who is similarly situated as to the ten(10) year practice of law was
interviewed by the JBC while the petitioner was not afforded the
opportunity to be heard.

ALL applicant who meet the minimum qualification including the ten(10)
year practice of law in the Philippines should be considered an applicant and
should go through the selection process.

In the JBCs Rule 009 the five years assailed Policy is not also listed as
disqualification.

The Petitioners submit that the constitution mention of fifteen (15)

years or more , a judge of a lower court as a qualification for Supreme Court
or any lower collegiate court but it is alternative by the use of word OR
(Par 1, Sec 7, Art VIII) to wit:

ARTICLE VIII- JUDICIAL DEPARTMENT

Section 7. (1) No person shall be appointed Member of the Supreme Court or any
lower collegiate court unless he is a natural-born citizen of the Philippines. A
Member of the Supreme Court must be at least forty years of age, and must
have been for fifteen years or more, a judge of a lower court or engaged in the
practice of law in the Philippines.

Meaning the qualification is either 15 years as a Judge or 15 years practice

of law in the Philippines.

HOW MUCH MORE in this case. The constitution and statutes did not
mention of any number of years service as a lower court Judge. The only
minimum qualification as to experience or service is the ten(10) years
practice of law in the Philippines. NO ALTERNATIVE. Sec 15, BP 129
provides:

3. Section 15, BP 129 AN ACT REORGANIZING THE JUDICIARY,

APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES

19
 Qualifications. No persons shall be appointed Regional Trial Judge unless he is a
natural-born citizen of the Philippines, at least thirty-five years of age, and for at
least ten years, has been engaged in the practice of law in the Philippines or has held
a public office in the Philippines requiring admission to the practice of law as an
indispensable requisite

IN FACT RULE 009 OF THE RESPONDENT JBC PROVIDES THAT:

RULE 2
CONSTITUTIONAL AND STATUTORY QUALIFICATIONS FOR
APPOINTMENT
Section 1. Qualifications applicable to all members of the Judiciary and the
Ombudsman and his Deputies.
Section 7. Additional qualifications of Judges of the Regional Trial Courts No
person shall be appointed Judge of the Regional Trial Court unless he is at least
thirty-five years of age, and, for at least ten years has been engaged in the practice of
law in the Philippines or has held a public office in the Philippines requiring
admission to the practice of law as an indispensable requisite. (B.P. Blg.129.Section
15).

There was no mention of six years service as Judge in the Lower Court.

THE RESPONDENT AND JBCS ARGUMENTS IS OFF TANGENT.

MISSED THE SUBJECT OF THE CONTROVERSY OUT OF RANGE.

It already argues recommendations and short list. Vested right to the

position. We are not yet in that stage we are still in the PRE-NOMINATION
STAGE, PRIOR TO THE INTERVIEW.

The QUESTION that should be ANSWERED in this case is WHO

SHOULD BE CONSIDERED A QUALIFIED APPLICANT IN ORDER TO
GO THROUGH THE PROCESS OF SELECTION? The answer lies in the
constitution and statutes as prescribed by congress.

Simply put JBC should not have prescribed policy on the qualification of the
applicants.

The respondent JBC is correct nobody has a vested title to the vacant
position. so everybody who meets the minimum qualification should have
been considered and go through the selection process.

The Respondents argues that:

Contrary to what petitioner believes, applicants who have been in the

practice of law for at least ten(10) year are not automatically included in the
long list of candidates for vacant positions in the Regional trail Courts
especially if they come from the private sector.

20
Petitioners reply:

Again this is another VIOLATION OF THE CONSTITUTION AND

STATUTES. ANOTHER, UNWRITTEN POLICY. It is only now that the
petitioner knows that even the private practitioner will not be included in the
long list of applicants even if he meets the minimum qualification.

This is worst than the assailed policy because at least the Lower Court Judge
knows why he / she was disqualified. In the case of private practitioner who
meets the minimum qualification maybe disqualified in whatever grounds
the respondent may think. This is clearly WHIMSICAL, ARBITRARY
AND GRAVE ABUSE OF POWER AND DISCRITION. With all due
respect you can charged the petitioner of GROSS IGNORANCE OF THE
LAW but will never accede to such arguments. To rule otherwise would be to
sanction absurdity and injustice.

The Respondent argues that:

The JBC has consistently applied the classification created under the
challenged policy to similar instances in the past and will consistently apply
the challenged policy to similar instances in the future. That is precisely the
reason why the policy has been long standing. If there have been exceptions,
then those pertain to exceptional ones, similar to the instances allowed under
Rule 9 of the rules of the JBC.

Petitioners reply:

What are those exceptional circumstance? The challenged policy was not
even mentioned in JBC Rule 009. How much more its exemption.

This is not true. Anyway the respondents COMMENT is not verified or

under oath. The Profile of the Supreme Court Justices will prove otherwise.
The JBC should have look into the Profile of the RTC Judges I know some
did not meet the qualification set by the assailed Policy.

4. The challenged policy can be assailed on due

process ground.

It is a substantial violation of due process.

Section 1, Article III, of the Constitution states that no person shall be deprived
of property without due process of law. Protected property includes the right to
work and the right to earn a living. In JMM Promotion and Management, Inc. v.
Court of Appeals,[3] the Court held that:

21
 A profession, trade or calling is a property right within the meaning
of our constitutional guarantees. One cannot be deprived of the right to
work and the right to make a living because these rights are property
rights, the arbitrary and unwarranted deprivation of which normally
constitutes an actionable wrong. (Emphasis supplied) (Antonio M. Serano
vs. Gallant Maritime Services, Inc. and Marlow Navigation Co. Inc., G.R.
No. 167624)

Moreover, The equal protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the requirements of justice and fair
play. It has been embodied in a separate clause, however, to provide for a more specific
guaranty against any form of undue favoritism or hostility from the government.
Arbitrariness in general may be challenged on the basis of the due process clause. ]
(Louis Barok C. Biraogo, Vs. The Phil Truth Commission of 2010, G.R. No. 192935,
Re Edcel Lagman et.al. vs. Ex. Sec Paquito Ochoa, et.al. ,G.R. No. 193036, Dec7, 2010)

Substantial because despite meeting the minimum qualification he was not

considered as applicant. He was not interviewed and was not able to present
himself, his accomplishment in his 32 years in government service almost
12 years of which is spent in the practice of law. . He was not given the
opportunity to be heard of how he declog or reduce his docket to more than
a half just in one year. How many times he went to the far flung areas and
conduct ocular inspection despite the risk in his life. How effective he was
in the conduct of JDR. How he performed his administrative function. He
teach in Law School in order to be competent and to be updated with the
current Supreme Court Jurisprudence. He has no record of graft and
corruption in his 32 years in government service, despite the opportunity in
the position he previously occupied in different government agency. Was not
involved in any immoral activity. The JBC should also consider his rating in
the Pre-Judicature Program. How he fight and stand his ground for truth and
Justice. All this other factors mentioned by the respondent in their comment
could have been discovered during the selection process .

It is also a violation of Procedural Due Process because it is UNWRITTEN

and was not Published. It is in violation of the JBCs OWN POLICY of
TRANSPARENCY as stated in its WHEREAS CLAUSE OF JBC - RULE
009.

The petitioner is also invoking his LIBERTY guaranteed by the constitution.

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to

include the right to exist and the right to be free from arbitrary restraint or
servitude. The term cannot be dwarfed into mere freedom from physical restraint
of the person of the citizen, but is deemed to embrace the right of man to enjoy
the facilities with which he has been endowed by his Creator, subject only to such
restraint as are necessary for the common welfare.[68] In accordance with this
case, the rights of the citizen to be free to use his faculties in all lawful ways; to
live and work where he will; to earn his livelihood by any lawful calling; and to
pursue any avocation are all deemed embraced in the concept of liberty.[69]

22
 The U.S. Supreme Court in the case of Roth v. Board of Regents,[70] sought
to clarify the meaning of liberty. It said:

While the Court has not attempted to define with exactness the liberty. . .
guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not
merely freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God
according to the dictates of his own conscience, and generally to enjoy those
privileges long recognizedas essential to the orderly pursuit of happiness by
free men. In a Constitution for a free people, there can be no doubt that the
meaning of liberty must be broad indeed. (City of Manila, Hon. Alfredo S. Lim
as mayor of Manila, et.al. vs Hon. Perfecto A.S. Laguio Jr., as presiding Judge
RTC, Manila and Malati Tourist Dev. Corpn., G.R. No. 118127. April 12, 2005)

What the Petitioner is asking is his constitutional right to have DUE

PROCESS both substantial and Procedural.

Respondents argues. Appointment to judicial office is a privilege and not a

judicially enforceable right.

Petitioners reply: The arguments of the Solgen is off tangent.

The Petitioner is not asking outright appointment to a Judicial Office. All he

is asking is to be considered as applicant and go through the process of
selection, allowed him to be interviewed, take the examinations. He should
be afforded with the right to due process, to be heard, to be have equal
protection of laws, equal opportunity of employment, .

Respondent argues that:

Ones inclusion in the list of candidates is subject to the discretion of the JBC
over the selection of nominees for a particular judicial post.

Reply: It should be clarified the petitioner was not included in the list of
qualified applicants not a list of recommended applicants OR
CANDIDATES. The former refers to candidate for interview by the JBC and
later refers to candidates who passed the selection process to be
recommended to the president.

The JBC has no DISCRETION to reject IMMEDIATELY any applicant who

meets the minimum requirements, they should interview them and allowed
to take the examination. THE QUALIFICATION WAS ALREADY SET BY
THE CONSTITUTION AND STATUTES.

THIS RIGHT IS GUARANTEED UNDER SEC. 3, ART. XIII OF THE

CONSTITUTION TO WIT:

Section 3. The State shall afford full protection to labor, local and overseas,
23
organized and unorganized, and promote full employment and equality of
employment opportunities for all.

Respondent argues:

There is no law, however, that grants him the right to a promotion to second
level courts.

Again, the petitioner is not asking for immediate promotion to the second
level courts all he wanted is to allow him to go through the process of
selection and be included in the list of applicants to be interviewed, to
undergo written, psychological examination , etc.

PRAYER

WHEREFORE, it is respectfully prayed of this Honorable Court to exercise

its power to:

1. Grant the Petition. Pending resolution of this Petition, a temporary

Restraining order, and/ or a writ of preliminary injunction be issued
compelling Public Respondents to refrain from disqualifying the
Petitioner and all other Judges similarly situated with the petitioner in
their present or future application for second level courts (RTC
Judges) and to include the petitioner as applicants in the above
mentioned RTCs and go through the process of selection and
evaluation;

2. After due proceedings:

Declare the unconstitutionality of the Policy requiring five (5) years

experience as LOWER COURT Judge and those that are not prescribed in
the constitution and the statutes (THE SO CALLED UNWRITTEN
RULES).

3. To order the JBC to implement the R.A. 8557 that only participants
who have completed the programs prescribed by the Academy and
have satisfactorily complied with all the requirements incident thereto
may be appointed or promoted to any position or vacancy in the
Judiciary.

Other reliefs and remedies which are just and equitable under the premises is
likewise prayed.

Respectfully submitted ______of August, 2014, at Compostela, Compostela

Valley Province.

IN WITNESS HEREOF, I hereunto set my hand signature this February 24,

24
2012, at Nabunturan, Compostela Valley Province, Philippines.

JUDGE FERDINAND R. VILLANUEVA

EXPLANATION

A copy hereof is served on opposing counsel via registered mail due to lack
of time and field personnel, due to the urgency of filing the same with this
Honorable Office, and the distance of the law office of the opposing counsel.

25