Documenti di Didattica
Documenti di Professioni
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* EN BANC.
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VOL. 615, March 17, 2010 673
Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan
City, respectively (Valenzuela), 298 SCRA 408 (1998).·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. 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.
Same; Same; Same; Same; The usage in Section 4(1), Article
VIII of the Constitution of the word shall·an imperative, operating
to impose a duty that may be enforced·should not be disregarded;
Section 4(1) imposes on the President the imperative duty to make
an appointment of a Member of the Supreme Court within 90 days
from the occurrence of the vacancy·the failure by the President to
do so will be a clear disobedience to the Constitution; The 90-day
limitation fixed in Section 4(1), Article VIII for the President to fill
the vacancy in the Supreme Court was undoubtedly a special
provision to establish a definite mandate for the President as the
appointing power.·Moreover, the usage in Section 4(1), Article VIII
of the word shall·an imperative, operating to impose a duty that
may be enforced·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. The 90-day
limitation fixed in Section 4(1), Article VIII for the President to fill
the vacancy in the Supreme Court was undoubtedly a special
provision to establish a definite mandate for the President as the
appointing power, and cannot be defeated by mere judicial
interpretation in Valenzuela to the effect that Section 15, Article VII
prevailed because it was „couched in stronger negative language.‰
Such interpretation even turned out to be conjectural, in light of the
records of the Constitutional CommissionÊs deliberations on Section
4 (1), Article VIII.
Same; Same; Same; Same; Valenzuela arbitrarily ignored the
express intent of the Constitutional Commission to have Section 4
(1), Article VIII stand independently of any other provision, least of
all
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lie, the following requisites must be complied with: (a) the plaintiff
has a clear legal right to the act demanded; (b) it must be the duty
of the defendant to perform the act, because it is mandated by law;
(c) the defendant unlawfully neglects the performance of the duty
enjoined by law; (d) the act to be performed is ministerial, not
discretionary; and (e) there is no appeal or any other plain, speedy
and adequate remedy in the ordinary course of law.
Same; Presidency; Appointments; Judicial and Bar Council;
The Judicial and Bar Council (JBC) has no discretion to submit the
list of nominees to fill a vacancy in the Supreme Court to the
President after the vacancy occurs, because that shortens the 90-day
period allowed by the Constitution for the President to make the
appointment.·Section 4(1) and Section 9, Article VIII, mandate the
President to fill the vacancy in the Supreme Court within 90 days
from the occurrence of the vacancy, and within 90 days from the
submission of the list, in the case of the lower courts. The 90-day
period is directed at the President, not at the JBC. Thus, the JBC
should start the process of selecting the candidates to fill the
vacancy in the Supreme Court before the occurrence of the vacancy.
Under the Constitution, it is mandatory for the JBC to submit to
the President the list of nominees to fill a vacancy in the Supreme
Court in order to enable the President to appoint one of them within
the 90-day period from the occurrence of the vacancy. The JBC has
no discretion to submit the list to the President after the vacancy
occurs, because that shortens the 90-day period allowed by the
Constitution for the President to make the appointment. 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.
Same; Same; Same; Same; The duty of the Judicial and Bar
Council (JBC) to submit a list of nominees before the start of the
PresidentÊs mandatory 90-day period to appoint is ministerial, but
its selection of the candidates whose names will be in the list to be
submitted to the President lies within the discretion of the JBC.·
The duty of the JBC to submit a list of nominees before the start of
the PresidentÊs mandatory 90-day period to appoint is ministerial,
but its selection of the candidates whose names will be in the list to
be submitted to the President lies within the discretion of the JBC.
The object of the petitions for mandamus herein should only refer to
the
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The Constitution made no distinction. Ubi lex non distinguit nec nos
distinguere debemos.
Same; Same; Same; Same; Expressio Unius; There is no clear
circumstance that would indicate that the enumeration in the
exception in Section 15, Article VII of the Constitution was not
intended to be exclusive.·The exception is likewise clear. Expressio
unius et exclusio alterius. The express mention of one person, thing
or consequence implies the exclusion of all others. There is no clear
circumstance that would indicate that the enumeration in the
exception was not intended to be exclusive. Moreover, the fact that
Section 15 was couched in negative language reinforces the
exclusivity of the exception. Under the rules of statutory
construction, exceptions, as a general rule, should be strictly but
reasonably construed; they extend only so far as their language
fairly warrants, and all doubts should be resolved in favor of the
general provisions rather than the exception. Where a general rule is
established by statute with exceptions, the court will not curtail the
former nor add to the latter by implication.
Same; Same; Same; Same; Judgments; The ponencia should not
hastily reverse, on the sole basis of Justice RegaladoÊs opinion, the
CourtÊs unanimous en banc decision In Re Appointments of Hon.
Valenzuela & Hon. Vallarta, 298 SCRA 408 (1998), penned by Chief
Justice Andres Narvasa, and concurred in by, inter alia, Associate
Justices who later became Chief Justices·Hilario Davide, Jr.,
Artemio Panganiban and Reynato Puno.·In its third
ratiocination, the ponencia faults Valenzuela for not according
weight and due consideration to the opinion of Justice Florenz
Regalado. It accords high regard to the opinion expressed by Justice
Regalado as a former ConCom Member, to the exception of the
opinion of all others similarly situated. It bears noting that the
Court had spoken in one voice in Valenzuela. The ponencia should
not hastily reverse, on the sole basis of Justice RegaladoÊs opinion,
the CourtÊs unanimous en banc decision penned by Chief Justice
Andres Narvasa, and concurred in by, inter alia, Associate Justices
who later became Chief Justices·Hilario Davide, Jr., Artemio
Panganiban and Reynato Puno. The line of reasoning is specious. If
that is the case and for accuracyÊs sake, we might as well reconvene
all ConCom members and put the matter to a vote among them.
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rendering the lapse of the 90-day period within the period of the
ban, in which case the remaining period should resume to run at
noon of June 30. The outgoing President would be released from
non-fulfillment of the constitutional obligation, and the duty
devolves upon the new President. Considering also that Section 15
of Article VII is an express limitation on the PresidentÊs power of
appointment, the running of the 90-day period is deemed
suspended during the period of the ban which takes effect only
once every six years.
Same; Same; Judicial and Bar Council; The ponenciaÊs
interpretation that the Judicial and Bar Council (JBC) has until 17
May 2010, at the latest, within which to submit to the President the
list of nominees for the position of Chief Justice is absurd as it takes
the application and nomination stages in isolation from the whole
appointment process·for the ponencia, the filling of the vacancy
only involves the President, and the JBC was not considered when
the period was increased from 60 days to 90 days.·The ponencia
also holds that the JBC has until May 17, 2010, at the latest, within
which to submit to the President the list of nominees for the
position of Chief Justice. It declares that the JBC should start the
process of selecting the candidates to fill the vacancy in the
Supreme Court before the occurrence of the vacancy, explaining
that the 90-day period in the proviso, „Any vacancy shall be filled
within ninety days from the occurrence thereof,‰ is addressed to the
President, not to the JBC. Such interpretation is absurd as it takes
the application and nomination stages in isolation from the whole
appointment process. For the ponencia, the filling of the vacancy
only involves the President, and the JBC was not considered when
the period was increased from 60 days to 90 days. The sense of the
Concom is the exact opposite. The flaw in the reasoning is made
more evident when the vacancy occurs by virtue of death of a
member of the Court. In that instance, the JBC could never
anticipate the vacancy, and could never submit a list to the
President before the 90-day period.
Same; Same; Supreme Court; It is ironic for the ponencia to
recognize that the President may need as much as 90 days of
reflection in appointing a member of the Court, and yet abhor the
idea of an acting Chief Justice in the interregnum as provided for by
law, confirmed by tradition, and settled by jurisprudence to be an
internal matter·the express allowance of a 90-day period of vacancy
rebuts any policy argument on the necessity to avoid a vacuum of
even a single day in the position of an appointed Chief Justice.·It is
ironic
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for the ponencia to state on the one hand that the President would
be deprived of ample time to reflect on the qualifications of the
nominees, and to show on the other hand that the President has, in
recent history, filled the vacancy in the position of Chief Justice in
one or two days. It is ironic for the ponencia to recognize that the
President may need as much as 90 days of reflection in appointing a
member of the Court, and yet abhor the idea of an acting Chief
Justice in the interregnum as provided for by law, confirmed by
tradition, and settled by jurisprudence to be an internal matter. The
express allowance of a 90-day period of vacancy rebuts any policy
argument on the necessity to avoid a vacuum of even a single day in
the position of an appointed Chief Justice.
ame; Same; Same; As a member of the Court, I strongly take
exception to the ponenciaÊs implication that the Court cannot
function without a sitting Chief Justice.·As a member of the
Court, I strongly take exception to the ponenciaÊs
implication that the Court cannot function without a sitting
Chief Justice. To begin with, judicial power is vested in one
Supreme Court and not in its individual members, much less in the
Chief Justice alone. Notably, after Chief Justice Puno retires, the
Court will have 14 members left, which is more than sufficient to
constitute a quorum. The fundamental principle in the system of
laws recognizes that there is only one Supreme Court from whose
decisions all other courts are required to take their bearings. While
most of the CourtÊs work is performed by its three divisions, the
Court remains one court·single, unitary, complete and supreme.
Flowing from this is the fact that, while individual justices may
dissent or only partially concur, when the Court states what the law
is, it speaks with only one voice. The Court, as a collegial body,
operates on a „one member, one vote‰ basis, whether it sits en banc
or in divisions. The competence, probity and independence of the
Court en banc, or those of the CourtÊs Division to which the Chief
Justice belongs, have never depended on whether the member
voting as Chief Justice is merely an acting Chief Justice or a duly
appointed one.
NACHURA, J., Separate Opinion:
Judicial Review; The consolidated petitions should be
dismissed, because they do not raise an actual case or controversy
ripe for judicial determination.·After careful perusal of the
pleadings and painstaking study of the applicable law and
jurisprudence, I
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sit in the Court. Thus, both by law and history, the Chief Justice
has always been a Member of the Court·although, as a primus
inter pares·appointed by the President together with every other
Associate Justice. For this reason, we should dismiss the Soriano
petition for lack of merit.
Same; Same; Appointments; Judiciary; From their wordings,
urgency leaps up from Section 4(1) of Article VIII of the Constitution
while no such message emanates from Section 9·in the latter the
Judicial and Bar Council (JBC) appears free to determine when a
submission is to be made, obligating the President to issue
appointments within 90 days from the submission of the JBC list;
Section 9 may offer more flexibility in its application as the mandate
for the President is to issue appointments within 90 days from
submission of the list, without specifying when the submission
should be made.·Section 15 on its face disallows any appointment
in clear negative terms (shall not make) without specifying the
appointments covered by the prohibition. From this literal reading
springs the argument that no exception is provided (except the
exception found in Section 15 itself) so that even the Judiciary is
covered by the ban on appointments. On the other hand, Section
4(1) is likewise very clear and categorical in its terms: any vacancy
in the Court shall be filled within 90 days from its occurrence. In the
way of Section 15, Section 4(1) is also clear and categorical and
provides no exception; the appointment refers solely to the
Members of the Supreme Court and does not mention any period
that would interrupt, hold or postpone the 90-day requirement.
Section 9 may offer more flexibility in its application as the
mandate for the President is to issue appointments within 90 days
from submission of the list, without specifying when the submission
should be made. From their wordings, urgency leaps up from
Section 4(1) while no such message emanates from Section 9; in the
latter the JBC appears free to determine when a submission is to be
made, obligating the President to issue appointments within 90
days from the submission of the JBC list. From this view, the
appointment period under Section 9 is one that is flexible and can
move. Thus, in terms of conflict, Sections 4(1) and Sections 15 can
be said to be directly in conflict with each other, while a conflict is
much less evident from a comparison of Sections 9 and 15. This
conclusion answers the verba legis argument of the Peralta petition
that when the words or terms of a statute or provision is clear and
unambiguous, then no interpretation is necessary as the
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that created by the period provided for the lower court under
Section 9.
Same; Same; Same; Same; Stare Decisis; The stability of
judgments is indeed a glue that the Judiciary and the litigating
public cannot do without if we are to have a working and stable
justice system.·I find it interesting that Peralta largely justifies his
position that the JBC should now be prohibited from proceeding
with the nomination process based on Valenzuela as the prevailing
rule that should be followed under the principle of stare decisis.
Tolentino apparently misappreciates the reach and real holding of
Valenzuela, as explained and clarified above. A ruling involving the
appointment of lower court judges under Section 9, Article VIII
cannot simply be bodily lifted and applied in toto to the
appointment of Members of the Supreme Court under Section 4(1)
of the same Article. Because of his misappreciation, Tolentino is
likewise mistaken in his appeal to the principle of stare decisis. The
stability of judgments is indeed a glue that the Judiciary and the
litigating public cannot do without if we are to have a working and
stable justice system. Because of this role, the principle is one that
binds all courts, including this Court, and the litigating public. The
principle, however, is not open-ended and contains its own self-
limitations; it applies only to actions in all future similar cases and
to none other. Where ample room for distinction exists, as in this
case, then stare decisis does not apply.
Same; Same; Same; Same; Same; Another aspect of stare decisis
that must be appreciated is that Supreme Court rulings are not
written in stone so that they will remain unerased and applicable for
all times.·Another aspect of stare decisis that must be appreciated
is that Supreme Court rulings are not written in stone so that they
will remain unerased and applicable for all times. The Supreme
CourtÊs review of rulings and their binding effects is a continuing
one so that a ruling in one era may be declared by the Court at
some future time to be no longer true and should thus be abandoned
and changed. The best and most unforgettable example of this kind
of change happened in the United States when the US Supreme
Court overturned the ruling in Plessy v. Fergusson that upheld the
constitutionality of racial segregation under the „separate but
equal‰ doctrine. After half a century, the US Court completely
abandoned this ruling in the now famous Brown v. Board of
Education when it ruled that „separate but equal‰ doctrine is
inherently unequal in the context of public education. I mention
this, if only as a reminder to
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one and all, that the terms of the Valenzuela ruling, if truly
applicable even to appointments to this Court, is not written in
stone and remains open for review by this Court.
Same; Same; Same; Same; Same; Completeness has a
heightened meaning when the missing Member is the head of the
Judiciary and the Court in the person of the Chief Justice.
·Valenzuela rests on the reasoning that the evil that Section 15
seeks to remedy·vote buying, midnight appointments and partisan
reasons to influence the results of the election·is so pervasive so
that the Section 15 ban should prevail over everything else. The
Court, however, forgot in some statements in this case that hand in
hand with Section 15 is Section 4(1) where the framers also
recognized, in clear and absolute terms, that a vacancy in the Court
should be filled up because of the importance of having a Supreme
Court with its full and complete membership. Completeness has a
heightened meaning when the missing Member is the head of the
Judiciary and the Court in the person of the Chief Justice.
Same; Same; Same; Same; Same; What Valenzuela failed to
consider, because it was looking at the disputed provisions from the
prism of two Regional Trial Court (RTC) judges, is that the reasons
for the application of Section 15, Article VII may not at all exist in
appointments to the Supreme Court.·What Valenzuela failed to
consider, because it was looking at the disputed provisions from the
prism of two RTC judges, is that the reasons for the application of
Section 15, Article VII may not at all exist in appointments to the
Supreme Court. In the first place, Section 4(1) covers only the
appointment of 15 Members, not in their totality, but singly and
individually as Members disappear from the Court and are
replaced. Thus, the evil that the Aytona case sought to remove·
mass midnight appointments·will not be present. Secondly,
partisanship is hardly a reason that would apply to the Supreme
Court except when the Members of the Court individually act in
violation of their oaths or directly transgress our graft and
corruption laws. Let it be remembered that the Constitution itself
has entrusted to the Court the final and definitive recourse in
election contest involving the President, the Vice-President and
Members of Congress. Because of this reposed trust on the Supreme
Court as a body, reasons of partisanship can hardly be a reason to
systemically place the whole Supreme Court under a ban on
appointments during the election period.
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Same; Same; Same; Same; The reasons the former Chief Justice
cited in Valenzuela justify the application of the Section 15, Article
VII as against the rule on appointment of lower court judges under
Section 9, Article VIII·Section 9 does not impose a hard and fast
rule on the period to be observed, apparently because the urgency of
the appointment may not be as great as in the appointment of
Members of the Supreme Court.·Where, as in Valenzuela, the Chief
Justice of the Supreme Court, no less, appeared to have given up
the benefit of an immediate appointment of Members of the
Supreme Court, then extremely compelling reasons must have
driven the Court to its conclusion. I fully understood though the
former Chief JusticeÊs conclusion in this case when I realized that
he was not effectively ruling on Section 4(1) of Article VIII, and was
in fact ruling on a case involving lower court judges. For indeed, the
reasons the former Chief Justice cited in Valenzuela justify the
application of the Section 15, Article VII as against the rule on
appointment of lower court judges under Section 9, Article VIII. As
I have shown above, Section 9 does not impose a hard and fast rule
on the period to be observed, apparently because the urgency of the
appointment may not be as great as in the appointment of Members
of the Supreme Court. The period for appointment can move at the
discretion of the JBC, although the exercise of this discretion also
carries its own butt-in and implicit limits.
ABAD, J., Concurring Opinion:
Presidency; Appointments; Midnight Appointment Ban;
Judicial Review; Actual Case or Controversy; Under the
circumstances,
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selection process and submit its list of nominees in time for the
incumbent President or her successor to fill up the vacancy within
the period required by the Constitution. Alternatively, assuming
that an actual controversy has not yet developed as to warrant
action on the petitions filed in this case, the Court has the
authority, as an incident of its power of supervision over the JBC, to
see to it that the JBC faithfully executes its duties as the
Constitution requires of it.
Same; Same; Same; Same; Same; While the President can freely
choose to appoint any person who meets the basic qualifications for a
position in the Executive Department, he does not have such freedom
of choice when it comes to appointments in the judiciary·in the
latter case, the Constitution provides in Section 9 of Article VIII that
the President can choose his appointee only from a Judicial and Bar
Council (JBC) short list of its nominees.·Citing „In Re:
Appointments dated March 30, 1998 of Hon. Mateo A. Valenzuela
and Hon. Placido B. Vallarta as Judges of the Regional Trial Court
of Branch 62, Bago City and of Branch 24, Cabanatuan City,‰ 298
SCRA 408 (1998), the oppositors claim that the ban on midnight
appointments applies to the judiciary. After examining the reasons
for the two apparently conflicting provisions, the Court said that
the need to fill up vacancies in the judiciary within the period the
Constitution provides must yield to the ban on Presidential
midnight appointments. The Court explained this ruling:
Considering the respective reasons for the time frames for
filling vacancies in the courts and the restriction on the
PresidentÊs power of appointment, it is this CourtÊs view
that, as a general proposition, in case of conflict, the former
should yield to the latter. Surely, the prevention of vote-
buying and similar evils outweighs the need for avoiding
delays in filling up of court vacancies or the disposition of
some cases. Temporary vacancies can abide the period of the
ban which, incidentally and as earlier pointed out, comes to
exist only once in every six years. Moreover, those occurring
in the lower courts can be filled temporarily by designation.
But prohibited appointments are long-lasting and
permanent in their effects. They may, as earlier pointed out,
in fact influence the results of elections and, for that reason,
their making is considered an election offense. But the above
assumes that the outgoing incumbent President can make
appointments in the judiciary during
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the period of the ban „to buy votes‰ and commit „similar evils‰ like
denying the incoming President the opportunity to consider other
appointees in the light of his new policies, a point former President
Diosdado Macapagal made in Aytona v. Castillo, 4 SCRA (1962).
The fact, however, is that while the President can freely choose to
appoint any person who meets the basic qualifications for a position
in the Executive Department, he does not have such freedom of
choice when it comes to appointments in the judiciary. In the latter
case, the Constitution provides in Section 9 of Article VIII that the
President can choose his appointee only from a JBC short list of its
nominees.
Same; Same; Same; Same; Same; The idea that the outgoing
incumbent President can take advantage of her appointment of a
Chief Justice to buy votes in the coming elections is utterly ridiculous
·she has no control over the Judicial and Bar CouncilÊs (JBCÊs)
actions.·In reality, a PresidentÊs choice of Chief Justice is in fact
first a choice of the JBC before it is that of the President. Easily
there should at least be 20,000 lawyers who are 40 years of age and
have 15 years of law practice of some kind who could qualify for
Chief Justice. Yet, the President can choose only from a list of three,
four, or five lawyers that the JBC draws up for him. Consequently,
the idea that the outgoing incumbent President can take advantage
of her appointment of a Chief Justice to buy votes in the coming
elections is utterly ridiculous. She has no control over the JBCÊs
actions.
Same; Same; Same; Same; Same; Separation of Powers; The
Supreme Court that the Chief Justice heads is not a support agency
under the President; The proposition that a Chief Justice will always
be beholden to the President who appoints him is a myth.·The idea
that the incoming President should have the opportunity to choose
a Chief Justice who will support his policies does not also make
sense. The Supreme Court that the Chief Justice heads is not a
support agency under the President. One of the functions of the
Supreme Court is to provide a Constitutional check on abuses of the
Executive Department. The proposition that a Chief Justice will
always be beholden to the President who appoints him is a myth.
Former President Estrada appointed Chief Justice Hilario G.
Davide, Jr. who presided over his impeachment and administered
the oath to the incumbent President at the heels of EDSA II while
President Estrada still sat in Malacañang. Chief Justices Artemio
V. Pangani-
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BERSAMIN, J.:
The compulsory retirement of Chief Justice Reynato S.
Puno by May 17, 2010 occurs just days after the coming
presidential elections on May 10, 2010. Even before the
event actually happens, it is giving rise to many legal
dilemmas. 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?
Precís of the Consolidated Cases
Petitioners Arturo M. De Castro and John G. Peralta
respectively commenced G.R. No. 1910021 and G.R. No.
1911492 as special civil actions for certiorari and
mandamus, praying that the JBC be compelled to submit
to the incumbent President the list of at least three
nominees for the position of the next Chief Justice.
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703
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705
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706
Antecedents
707
„The Judicial and Bar Council (JBC) announces the opening for
application or recommendation, of the position of CHIEF JUSTICE
OF THE SUPREME COURT, which will be vacated on 17 May 2010
upon the retirement of the incumbent Chief Justice, HON.
REYNATO S. PUNO.
Applications or recommendations for this position must be
submitted not later than 4 February 2010 (Thursday) to the JBC
Secretariat xxx:‰
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15 http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf
16 http://jbc.judiciary.gov.ph/announcements/jbc_announce_2009/jan22%20%2710.pdf
708
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709
Issues
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21 Id.
22 Id., at p. 6.
710
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712
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27 Id., at p. 14.
28 Id., at p. 15.
29 Id., at pp. 20-24.
30 Id., at pp. 25-27.
31 Id., at pp. 29-30.
714
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32 Id.
33 Id., at pp. 32-33.
34 Id., at pp. 34-35.
35 Id.
715
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722
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723
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45 65 Phil. 56.
46 G.R. No. 117, November 7, 1945 (Unreported).
47 G.R. No. 2947, January 11, 1959 (Unreported).
48 77 Phil. 1012 (1947).
49 110 Phil. 331 (1960).
50 84 Phil. 368 (1949)
51 E.g., Chavez v. Public Estates Authority, G.R. No. 133250, July 9,
2002, 384 SCRA 152 (in which the Court ruled that the enforcement of
the constitutional right to information and the equitable diffusion of
natural resources are matters of transcendental importance which clothe
the petitioner with locus standi); Bagong Alyansang Makabayan v.
Zamora, G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10,
2000, 342 SCRA 449 (in which the Court held that „given the
transcendental importance of the issues involved, the Court may relax
the standing requirements and allow the suit to prosper despite the lack
of direct injury to the parties seeking judicial review‰ of the Visiting
Forces Agreement); Lim v. Executive Secretary, G.R. No. 151445, April
11, 2002, 380 SCRA 739 (in which the Court, albeit conceding that the
petitioners might
724
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Justiciability
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64 Id.
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Substantive Merits
I
Prohibition under Section 15, Article VII does not
apply to appointments to fill a vacancy in the
Supreme Court or to other appointments to the
Judiciary
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive
Department), provides:
_______________
733
„We have in the political part of this Constitution opted for the
separation of powers in government because we believe that the
only way to protect freedom and liberty is to separate and divide the
awesome powers of government. Hence, we return to the separation
of powers doctrine and the legislative, executive and judicial
departments.‰66
_______________
734
735
_______________
736
737
_______________
738
„xxx the court should seek to avoid any conflict in the provisions
of the statute by endeavoring to harmonize and reconcile every part
so that each shall be effective. It is not easy to draft a statute, or
any other writing for that matter, which may not in some manner
contain conflicting provisions. But what appears to the reader to be
a conflict may not have seemed so to the drafter. Undoubtedly, each
provision was inserted for a definite reason. Often by considering
the enactment in its entirety, what appears to be on its face a
conflict may be cleared up and the provisions reconciled.
Consequently, that construction which will leave every word
operative will be favored over one which leaves some word or
provision meaningless because of inconsistency. But a word should
not be given effect, if to do so gives the statute a meaning contrary
to the
_______________
71 Dizon v. Encarnacion, G.R. No. L-18615, December 24, 1963, 9 SCRA 714.
72 Crawford, Earl. T., The Construction of Statutes, Thomas Law Book
Company, St. Louis, Missouri, 262-264 (1940).
739
_______________
740
_______________
741
742
_______________
743
_______________
744
_______________
745
_______________
746
747
748
II
749
750
III
_______________
751
„Section 8. xxx
(5) The Council shall have the principal function of
recommending appointees to the Judiciary. xxx
Section 9. The Members of the Supreme Court and judges of
lower courts shall be appointed by the President from a list of at
least three nominees prepared by the Judicial and Bar
Council for every vacancy. Such appointments need no
confirmation.
For the lower courts, the President shall issue the
appointments within ninety days from the submission of the
list.‰
_______________
752
_______________
753
IV
_______________
754
755
DISSENTING OPINION
CARPIO-MORALES, J.:
756
_______________
757
_______________
5 G.R. No. 166052, August 29, 2007, 531 SCRA 583, where the petitioner
assailed the placing of the National Commission on Indigenous Peoples as an
attached agency of the Department of Agrarian Reform on the ground that,
inter alia, policy and program coordination between allegedly conceptually
different government agencies is unconstitutional.
758
_______________
759
_______________
760
_______________
761
_______________
762
_______________
763
_______________
764
765
_______________
766
_______________
767
_______________
_______________
15 Decision, p. 37.
16 Infra note 18.
769
_______________
770
_______________
771
_______________
20 In which case the CourtÊs complement remains incomplete with
still 14 members.
21 Republic Act No. 296 (Judiciary Act of 1948), Section 12 states that
in case of a vacancy in the office of Chief Justice, the Associate Justice
who is first in precedence may act as Chief Justice until one is appointed
and duly qualified.
22 Since the time of Chief Justice Cayetano Arellano, this rule of
succession has been observed throughout the CourtÊs history whenever
the position of Chief Justice is temporarily vacant for any reason. Vide
Revised copy of Special Order No. 826 (March 16, 2010)
772
_______________
23 Cf. Brillantes, Jr. v. Yorac, G.R. No. 93867, December 18, 1990, 192
SCRA 358.
24 CONSTITUTION, Art. VIII, Sec. 1.
25 Complaint of Mr. Aurelio Indencia Arrienda against Justice Puno,
499 Phil. 1, 14-15; 460 SCRA 1, 16 (2005).
773
SEPARATE OPINION
NACHURA, J.:
The Antecedents
_______________
774
_______________
2 Emphasis supplied.
775
_______________
3 Emphasis supplied.
4 A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.
776
„The Judicial and Bar Council (JBC) announces the opening for
application or recommendation, of the position of CHIEF JUSTICE
OF THE SUPREME COURT, which will be vacated on 17 May 2010
upon the retirement of the incumbent Chief Justice, HON.
REYNATO S. PUNO.
Applications or recommendations for this position must be
submitted not later than 4 February 2010 (Thursday) to the JBC
Secretariat. x x x.‰6
_______________
5 http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf (visited:
March 11, 2010).
6
http://jbc.judiciary.gov.ph/announcements/jbc_announce_2009/jan.22Ê10.pdf
(visited: March 11, 2010).
7 Comment of the JBC, p. 6.
777
778
_______________
8 Italics supplied.
779
My Position
780
781
_______________
_______________
15 Pefianco v. Moral, 379 Phil. 468, 479; 322 SCRA 439 (2000).
16 PHILCONSA petition, p. 5.
17 Soriano petition, p. 4; and Tolentino petition, p. 2.
783
_______________
784
_______________
785
_______________
21 Supra note 1.
22 358 Phil. 896; 298 SCRA 408 (1998).
23 See Confederation of Sugar Producers Association, Inc. v.
Department of Agrarian Reform, G.R. No. 169514, March 30, 2007, 519
SCRA 582, 620; Board of Optometry v. Hon. Colet, 328 Phil. 1187, 1206
(1996); and Abbas v. Commission on Elections, G.R. Nos. 89651 & 89965,
November 10, 1989, 179 SCRA 287, 300.
786
_______________
24 Sec. Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 429; 292
SCRA 402, 416-417 (1998); Angara v. Electoral Commission, 63 Phil. 139,
158 (1936).
25 Automotive Industry Workers Alliance v. Romulo, G.R. No. 157509,
January 18, 2005, 449 SCRA 1, 10.
26 See Sec. Guingona, Jr. v. Court of Appeals, supra note 24.
27 33 Phil. 494, 510 (1970).
787
_______________
28 424 US 1 (1976).
29 419 US 102 (1974).
788
SEPARATE OPINION
BRION, J.:
I AGREE with the conclusion that the President can
appoint the Chief Justice and Members of the Supreme
Court two months before a presidential election up to the
end of the PresidentÊs term, but DISAGREE with the
conclusion that the authority to appoint extends to the
whole Judiciary.
Prefatory Statement
I.
The debate, in and out of this Court, on the issues these
consolidated cases pose, have been differently described to
be at varying levels of severity and intensity. What we in
Court do know is the multiplicity of petitions and
interventions
_______________
30 Supra note 1.
789
790
791
_______________
792
_______________
793
_______________
5 Salonga v. Ernani Cruz Pano, et al., 219 Phil. 402, 429-430; 134
SCRA 438, 463 (1985).
6 See for example, In Re: List of Judges who failed to comply with
Administrative Circular No. 10-94, dated June 29, 1994, 439 Phil. 118;
390 SCRA 319 (2002).
7 CONSTITUTION, Article VIII, Section, 6.
8 Id., Article VIII, Section 5(5).
794
795
_______________
9 De Castro petition, p. 5.
10 RULES OF COURT, Rule 65, Section 1.
11 RULES OF COURT, Rule 65, Section 3.
12 De Castro petition, par. 8, page 5.
13 See: Constitutional Provision on the JBC, pp. 4-5 of this opinion.
796
_______________
14 De Castro petition, p. 3.
15 De Castro petition, p. 4.
16 Judicial notice is taken of the publications cited, as well as the
records on which these publications are based.
17 JBC Announcement dated January 20, 2010, part of the record on
file with the JBC and with the Court, and published in the Phil. Daily
Inquirer on January 21, 2010.
18 JBC Announcement dated 11 February, 2010, part of the record on
file with the JBC and with the Court, and published in the Phil. Daily
Inquirer on Feb. 13, 2010.
19 JBC Comment, dated Feb. 25, 2010, p. 6.
797
_______________
798
799
800
_______________
801
_______________
802
_______________
803
_______________
28 Soriano petition, p. 4.
29 Tolentino petition, p. 2.
804
_______________
30 Civil Liberties Union v. Executive Secretary, G.R. No. 83896,
February 21, 1991, 194 SCRA 317, 330.
805
806
807
_______________
808
809
_______________
810
811
812
813
_______________
814
_______________
815
816
_______________
817
word less for the Court. One voice can be a big difference if
the missing voice is that of the Chief Justice.
Without meaning to demean the capability of an Acting
Chief Justice, the ascendancy in the Court of a permanent
sitting Chief Justice cannot be equaled. He is the first
among equals·a primus inter pares·who sets the tone for
the Court and the Judiciary, and who is looked up to on all
matters, whether administrative or judicial. To the world
outside the Judiciary, he is the personification of the Court
and the whole Judiciary. And this is not surprising since, as
Chief Justice, he not only chairs the Court en banc, but
chairs as well the Presidential Electoral Tribunal that sits
in judgment over election disputes affecting the President
and the Vice-President. Outside of his immediate Court
duties, he sits as Chair of the Judicial and Bar Council, the
Philippine Judicial Academy and, by constitutional
command, presides over the impeachment of the
President.37 To be sure, the Acting Chief Justice may be the
ablest, but he is not the Chief Justice without the mantle
and permanent title of the Office, and even his presence as
Acting Chief Justice leaves the Court with one member
less. Sadly, this member is the Chief Justice; even with an
Acting Chief Justice, the Judiciary and the Court remain
headless.
The intent of the framers of the Constitution to extend
to the Court a fixed period that will assure the nation that
the CourtÊs membership shall immediately be filled, is
evidenced no less than by the Constitutional CommissionÊs
own deliberations where the following exchange took place:
_______________
37 Constitution, Article XI, Section 2(6).
818
_______________
38 See: Marcelino v. Cruz, No. L-42428, March 14, 1983, 121 SCRA 51.
819
_______________
39 Mendoza petition, p. 3.
820
821
822
CONCURRING OPINION
ABAD, J.:
Chief Justice Reynato S. Puno will retire on May 17,
2010. Article VIII, Section 91of the 1987 Constitution
requires the President to choose his successor from at least
three nominees of the Judicial and Bar Council (JBC). On
January 18, 2010 the JBC passed a unanimous resolution2
to start the process of filling up the anticipated vacancy.
Indeed, it invited applications and nominations for the
position through newspapers, later announced the names
of candidates to it, and finally received endorsements in
favor of and oppositions against such candidates.
_______________
1 Article VIII, Sec. 9. The members of the Supreme Court and judges
of lower courts shall be appointed by the President from a list of at least
three nominees prepared by the Judicial and Bar Council for every
vacancy. Such appointments need no confirmation. For the lower courts,
the President shall issue the appointments within ninety days from the
submission of the list.
2 http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf.
823
_______________
824
Issues to be addressed
Quite ably, the majority opinion already addressed the
several issues raised by the petitions and the oppositions to
them. I join that opinion and would add a few thoughts on
what I believe to be the key issues in this case, namely:
1. Whether or not the case presents an actual
controversy that is ripe for this CourtÊs adjudication; and
2. Whether or not the Constitutional ban on midnight
appointments applies to the judiciary.
Discussion
_______________
825
_______________
6 Id., Section 5.
7 Id., Section 9 in relation to Section 4(1).
826
_______________
827
_______________
828
Sec. 9.
The Members of the Supreme Court and judges
of lower courts shall be appointed by the President from a
list of at least three nominees prepared by the Judicial and
Bar Council for every vacancy. x x x
_______________
11 4 SCRA 1, 8 (1962).
12 Section 7(1) and (3), Article VIII, 1987 Constitution of the
Philippines.
829
„We wish to inform you that the six (6) nominees of the
JBC were chosen after a long and thorough selection
process. Among others, their public and private track
record, experience and possession of the required qualities
of competence, integrity, probity and independence were
carefully studies and considered by the JBC. They are all
highly qualified for the two (2) vacancies in the Supreme
Court and indeed, your letter of July 26, 2009 does not assail
and hence, concedes the qualification of the six (6)
nominees.
With due respect, the JBC cannot acquiesce to your
request to expand the short list of nominees submitted to
your office. The decision whether to include three or more
than three name in the short list of the nominees exclusively
belongs to the JBC. It is one of the important innovations in
the
830
831