ARTURO M. DE CASTRO v. JBC, GR No.

191002, 2010-03-17
Facts:
In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue expressed by
legal luminaries - one side holds that the incumbent President is prohibited from making
appointments within two months immediately before the coming presidential elections and
until... the end of her term of office as President on June 30, 2010, while the other insists that
the prohibition applies only to appointments to executive positions that may influence the
election and, anyway, paramount national interest justifies the appointment of a Chief
Justice... during the election ban - has impelled the JBC to defer the decision to whom to send
its list of at least three nominees, whether to the incumbent President or to her successor.[8]
He opines that the JBC is thereby arrogating unto itself "the judicial... function that is not
conferred upon it by the Constitution," which has limited it to the task of recommending
appointees to the Judiciary, but has not empowered it to "finally resolve constitutional
questions, which is the power vested only in the Supreme Court under the
Constitution." As such, he contends that the JBC acted with grave abuse of discretion in
deferring the submission of the list of nominees to the President; and that a "final and
definitive resolution of the constitutional questions raised above would diffuse (sic) the...
tension in the legal community that would go a long way to keep and maintain stability in the
judiciary and the political system."
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose the
insistence that Valenzuela recognizes the possibility that the President may appoint the next
Chief Justice if exigent circumstances warrant the appointment, because... that recognition is
obiter dictum; and aver that the absence of a Chief Justice or even an Associate Justice does
not cause epic damage or absolute disruption or paralysis in the operations of the Judiciary.
They insist that even without the successor of Chief Justice
Puno being appointed by the incumbent President, the Court is allowed to sit and adjudge en
banc or in divisions of three, five or seven members at its discretion; that a full membership of
the Court is not necessary; that petitioner De Castro's fears are unfounded and... baseless,
being based on a mere possibility, the occurrence of which is entirely unsure; that it is not in
the national interest to have a Chief Justice whose appointment is unconstitutional and,
therefore, void; and that such a situation will create a crisis in the judicial... system and will
worsen an already vulnerable political situation.
Intervenors Tan, Ubano, WTLOP, Bello et al., IBP Dacao del Sur, Corvera, and Boiser regard
De Castro's argument that a permanent Chief Justice is imperative for the stability of the
judicial system and the political situation in the country when the election-related... questions
reach the Court as false, because there is an existing law on filling the void brought about by a
vacancy in the office of Chief Justice; that the law is Section 12 of the Judiciary Act of 1948,
which has not been repealed by Batas Pambansa Blg. 129 or... any other law; that a temporary
or an acting Chief Justice is not anathema to judicial independence; that the designation of an
acting Chief Justice is not only provided for by law, but is also dictated by practical necessity;
that the practice was intended to be enshrined in... the 1987 Constitution, but the
Commissioners decided not to write it in the Constitution on account of the settled practice;
that the practice was followed under the 1987 Constitution, when, in 1992, at the end of the
term of Chief Justice Marcelo B. Fernan, Associate Justice
Andres Narvasa assumed the position as Acting Chief Justice prior to his official appointment
as Chief Justice; that said filling up of a vacancy in the office of the Chief Justice was
acknowledged and even used by analogy in the case of the vacancy of the Chairman of the
Commission on Elections, per Brillantes v. Yorac, 192 SCRA 358; and that the history of the
Supreme Court has shown that this rule of succession has been repeatedly observed and has
become a part of its tradition.
Issues:
Can current president appoint new CJ even if law tells us that the deadline for
appointments should be two months before elections?

May the incumbent President... appoint his successor, considering that Section 15, Article VII
(Executive Department) of the Constitution prohibits the President or Acting President from
making appointments within two months immediately before the next presidential elections
and up to the end of his... term, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public safety?
What is the relevance of Section 4 (1), Article VIII (Judicial Department) of the Constitution,
which provides that any... vacancy in the Supreme Court shall be filled within 90 days from the
occurrence thereof, to the matter of the appointment of his successor?
May the Judicial and Bar Council (JBC) resume the process of screening the candidates
nominated or being considered to succeed Chief
Justice Puno, and submit the list of nominees to the incumbent President even during the
period of the prohibition under Section 15, Article VII? Does mandamus lie to compel the
submission of the shortlist of nominees by the JBC?... whether the incumbent President can
appoint the next Chief Justice or not
Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act that the law specifically enjoins as a duty resulting from an
office, trust, or station.[86] It is proper when the act against... which it is directed is one
addressed to the discretion of the tribunal or officer. Mandamus is not available to direct the
exercise of a judgment or discretion in a particular way.[87]
Ruling:
The issues before us are of transcendental importance to the people as a whole, and to the
petitioners in... particular. Indeed, the issues affect everyone (including the petitioners),
regardless of one's personal interest in life, because they concern that great doubt about the
authority of the incumbent President to appoint not only the successor of the retiring
incumbent
Chief Justice, but also others who may serve in the Judiciary, which already suffers from a far
too great number of vacancies in the ranks of trial judges throughout the country.
We hold that the petitions set forth an actual case or controversy that is ripe for judicial
determination. The reality is that the JBC already commenced the proceedings for the
selection of the nominees to be included in a short list to be submitted to the President for...
consideration of which of them will succeed Chief Justice Puno as the next Chief Justice.
In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino and
Inting, submit that the incumbent President can appoint the successor of Chief Justice Puno
upon his retirement on May 17, 2010, on the ground that the prohibition against
presidential... appointments under Section 15, Article VII does not extend to appointments in
the Judiciary.
The Court agrees with the submission.
Although Valenzuela[67] came to hold that the prohibition covered even judicial
appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the
deliberations of the Constitutional Commission. Thereby, the confirmation... made to the JBC
by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the
Constitutional Commission, about the prohibition not being intended to apply to the
appointments to the Judiciary, which confirmation Valenzuela even expressly... mentioned,
should prevail.
However, the reference to the records of the Constitutional Commission did not advance or
support the result in Valenzuela. Far to the contrary, the records disclosed the express intent
of the framers to enshrine in the Constitution, upon the initiative of Commissioner
Eulogio Lerum, "a command [to the President] to fill up any vacancy therein within 90 days
from its occurrence," which even Valenzuela conceded.[69] The exchanges during
deliberations of the Constitutional Commission on October 8, 1986 further show... that the
filling of a vacancy in the Supreme Court within the 90-day period was a true mandate for the
President, viz:
Moreover, the usage in Section 4(1), Article VIII of the word shall - an imperative, operating to
impose a duty that may be enforced[71] - should not be disregarded. Thereby, Sections 4(1)
imposes on the President the imperative duty to... make an appointment of a Member of the
Supreme Court within 90 days from the occurrence of the vacancy. The failure by the
President to do so will be a clear disobedience to the Constitution.
Such appointments, so long as they are "few and so spaced as to afford some assurance of
deliberate action and... careful consideration of the need for the appointment and the
appointee's qualifications," can be made by the outgoing President.
Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the
Judiciary further undermines the intent of the Constitution of ensuring the independence of
the Judicial Department from the Executive and Legislative Departments.
Such a holding will tie the Judiciary and the Supreme Court to the fortunes or misfortunes of
political leaders vying for the Presidency in a presidential election. Consequently, the wisdom
of having the new President, instead of the current incumbent President, appoint the next
Chief Justice is itself suspect, and cannot ensure judicial independence, because the appointee
can also become beholden to the appointing authority. In contrast, the appointment by the
incumbent President does not run the same risk of compromising judicial independence,...
precisely because her term will end by June 30, 2010.
Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act that the law specifically enjoins as a duty resulting from an
office, trust, or station.[86] It is proper when the act against... which it is directed is one
addressed to the discretion of the tribunal or officer. Mandamus is not available to direct the
exercise of a judgment or discretion in a particular way.[87]
For the JBC to do so will be unconscionable on its part, considering that it will... thereby
effectively and illegally deprive the President of the ample time granted under the
Constitution to reflect on the qualifications of the nominees named in the list of the JBC
before making the appointment.
The distinction between a ministerial act and a discretionary one has been delineated in the
following manner:
The distinction between a ministerial and discretionary act is well delineated. A purely
ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of a legal authority,... without regard to or
the exercise of his own judgment upon the propriety or impropriety of the act done. If the law
imposes a duty upon a public officer and gives him the right to decide how or when the duty
shall be performed, such duty is discretionary and not... ministerial. The duty is ministerial only
when the discharge of the same requires neither the exercise of official discretion or
judgment.[89]