All the King’s Horses and all the King’s Men couldn’t put Humpty Dumpty together again…

PNOY calls to abolish PDAF (Video, courtesy of ANC)

Why is this not a solution to (pardon the expression Mr. President – #PNoy) SH*T?

First, the President simply said (and may I quote), “Panahon na po para i-abolish ang PDAF.” So what if he said that? That doesn’t mean a spit if you ask me… a mere lip service to calm an already agitated mob near its revolutionary wits. The Priority Development Assistance Fund (PDAF) is simply a label to an old allocation in the General Appropriations Act (or National Budget, also called GAA) called, “Country-wide Development Fund” or (CDF) and my friend it is but the same banana.

Second, the President calls for the “craft[ing of] a new mechanism to meet the needs of various sectors in a way that is transparent and fair. He said each sector will get a fair share of the national budget for health, scholarships, livelihoods and local infrastructure.” What for? It is because of this mechanism where too many fingers dip into the plate that spoils the entire dish, or to simply state it the more people who holds money the more money goes to waste or gone missing. Hence, the doctrine of Separation of Powers where the Legislature holds the power to legislate and incidental to wit is the ‘power of the purse,’ or to allocate funds of the government; where the executive branch (headed by the president, from the word itself) ‘executes the budget enacted by the legislature as the GAA;’ and where the Judiciary exercises its judicial power “to settle actual controversies involving rights which are legally demandable and enforceable,” and not to mention its expanded power which is to “determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”

This set-up is vital to an order that should keep a state in smooth motion, a disturbance of this order is a violation to the doctrine above-mentioned and it must be inherent to each branch to guard each other and themselves respectively from exercising a power that belongs to his brother.

So, am I saying that we are now at stale-mate with regard to the issue at hand? No, all I am saying is that a political call to abolish the pork-barrel system is not a solution to this debacle.

So, what is? A judicial declaration by the Supreme Court that all provisions of the GAA pertaining to the PDAF or any of its ‘siblings, cousins, extended relatives, and illegitimate families, or even drinking buddies’ are UNCONSTITUTIONAL as the same is a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the legislature, encroaching the powers of the executive to execute the law (or the national budget); ergo, violating the immortal doctrine of separation of powers. Without this judicial declaration and with a mere political call to end the PDAF would just pull the leg of the people of a ‘change’ that in the end is circumvented by fools and cacophonies in the murky swamps of Philippine Politics. Hence, the saying: “Weder-weder-lang-yan.”

I now call upon the few and brave souls of this nation; lawyers who took an oath before GOD and COUNTRY “to uphold the constitution,” file a petition to declare unconstitutional all the provisions in the GAA pertaining to the entire pork-barrel system UNCONSTITUTIONAL on the ground that it violates the doctrine of separation of powers.

Since I am not yet a lawyer, I may render my free service as a legal researcher for the filing of the said petition.

Now, I guess the only sane question now would be… “Any takers?”

RF Valdez
ronaldfvaldez@gmail.com

Why is this not a solution to (pardon the expression Mr. President – #PNoy) SH*T?

First, the President simply said (and may I quote), “Panahon na po para i-abolish ang PDAF.” So what if he said that? That doesn’t mean a spit if you ask me… a mere lip service to calm an already agitated mob near its revolutionary wits. The Priority Development Assistance Fund (PDAF) is simply a label to an old allocation in the General Appropriations Act (or National Budget, also called GAA) called, “Country-wide Development Fund” or (CDF) and my friend it is but the same banana.

Second, the President calls for the “craft[ing of] a new mechanism to meet the needs of various sectors in a way that is transparent and fair. He said each sector will get a fair share of the national budget for health, scholarships, livelihoods and local infrastructure.” What for? It is because of this mechanism where too many fingers dip into the plate that spoils the entire dish, or to simply state it the more people who holds money the more money goes to waste or gone missing. Hence, the doctrine of Separation of Powers where the Legislature holds the power to legislate and incidental to wit is the ‘power of the purse,’ or to allocate funds of the government; where the executive branch (headed by the president, from the word itself) ‘executes the budget enacted by the legislature as the GAA;’ and where the Judiciary exercises its judicial power “to settle actual controversies involving rights which are legally demandable and enforceable,” and not to mention its expanded power which is to “determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”

This set-up is vital to an order that should keep a state in smooth motion, a disturbance of this order is a violation to the doctrine above-mentioned and it must be inherent to each branch to guard each other and themselves respectively from exercising a power that belongs to his brother.

So, am I saying that we are now at stale-mate with regard to the issue at hand? No, all I am saying is that a political call to abolish the pork-barrel system is not a solution to this debacle.

So, what is? A judicial declaration by the Supreme Court that all provisions of the GAA pertaining to the PDAF or any of its ‘siblings, cousins, extended relatives, and illegitimate families, or even drinking buddies’ are UNCONSTITUTIONAL as the same is a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the legislature, encroaching the powers of the executive to execute the law (or the national budget); ergo, violating the immortal doctrine of separation of powers. Without this judicial declaration and with a mere political call to end the PDAF would just pull the leg of the people of a ‘change’ that in the end is circumvented by fools and cacophonies in the murky swamps of Philippine Politics. Hence, the saying: “Weder-weder-lang-yan.”

I now call upon the few and brave souls of this nation; lawyers who took an oath before GOD and COUNTRY “to uphold the constitution,” file a petition to declare unconstitutional all the provisions in the GAA pertaining to the entire pork-barrel system UNCONSTITUTIONAL on the ground that it violates the doctrine of separation of powers.

Since I am not yet a lawyer, I may render my free service as a legal researcher for the filing of the said petition.

Now, I guess the only sane question now would be… “Any takers?”

RF Valdez
ronaldfvaldez@gmail.com

Did the TRO issued by the SC over the issue of Corona’s Dollar accounts sparked a constitutional crisis?

It did not.

A constitutional crisis is a legal phenomena where the standing constitution of a state or other basic principles of its legal system is totally inadequate to be responsive towards a particular situation.

Allow me to say that this is not the case at bar.

The impeachment tribunal is a court “sui generis” specifically granted by the constitution to be the ONLY body to hear and try (Art. XI, Sec. 3 par. 6) the articles of impeachment (ibid., par. 1-3).  A lucid reading of the constitutional provisions relative to impeachment will tell us that the Senate sitting as an impeachment court is the sole arbiter of an impeachment case and a conviction or acquittal cannot be appealed to any court (even to the Supreme Court) incidental to this grant is the implied grant of the constitution to the same body to rule over motions or other matters relative to the disposition or resolution of the case.

“Sui Generis,” or “that which is the only one of its kind.”  Although the tribunal apply the Rules of Court suppletorily it does not however mean that the same is within the ambit of the SC’s direct jurisdiction.  As a matter of fact, the senate has promulgated its own rules to perform their constitutional duty.  Remember that the tribunal is not purely a judicial body, that in as much as it is legal in view it will always be political in spirit.

However, we should not remiss in reading  the grant by the constitution to the SC of Judicial power (Art. VIII, Sec. 1 par 1) and the the expanded definition of Judicial Power which states, “…to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”  The law is clear.  The SC has jurisdiction to hear, try, and/or grant any relief against the government or any branch or instrumentality thereof in the exercise of its inherent or delegated powers, as the case maybe.

Therefore, the grant of a TRO on the issue of Corona’s dollar accounts at PS bank is not necessarily unconstitutional.  Assuming arguendo, if it was, who will say so?

The issue of the TRO must be dealt with in connection with RA 6426 or the Foreign Currency Deposit Act which states that, “all foreign currency deposits authorized under this Act, as amended by PD No. 1035, as well as foreign currency deposits authorized under PD No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositor, in no instance shall foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative, or any other entity whether public or private…” (Sec. 8).

The principle of Stare Decisis dictates that the courts of justice are obliged to respect the precedents established by prior decisions of the Supreme Court.  It now begs the question: “Will the ruling of the SC on Salvacion vs. Central Bank of the Philippines (http://sc.judiciary.gov.ph/jurisprudence/1997/aug1997/94723.htm)  apply?  It is of my opinion that the said ruling is inapplicable to this case.  First, the said case is criminal in nature; and second, the issue therein is the garnishment of the said accounts.

We must accept the fact that the impeachment trial is not a judicial process nor is it a criminal proceeding (within the purview of the Rules of Court), in as much as it is a ‘trial’ it is most predominantly political.  Arguing that the nature of the case is criminal or quasi-criminal (as maybe pointed out by Sen. Mirriam Defensor-Santiago) it is still not of that specie.  The effect of a conviction in a criminal case is imprisonment and/or fine, whilst a conviction in an impeachment trial is mere removal from office. In this this light, the Salvacion Case cannot apply since the ruling is only applicable to criminal cases.

The case involves the garnishment of a foreign currency deposit held by a convicted person very much different from the case at bar; since here, the very heart of the allegation embodied in the articles of impeachment lies in the very existence of this account.  Therefore, again the case is not applicable.

The law is very clear.

The Senate sitting as an impeachment court is still subject to Philippines laws, therefore the viewing of the said accounts by the court would be an ultra vires act  well within the ambit of the SC’s power as expanded by the present constitution.

In toto, to say that the SC’s issuance is illegal, unconstitutional and that the grant just afforded us a constitutional crisis is just plain reckless.

Reflecting on Two Russian Literary Works

The selection, ‘Three Arshins of Land,’ by Leo N. Tolstoi tell us a story of how needs turn into wants, and men that allows the turning possible. The protagonist of the story is a meager man with a small piece of land to till in a small town on a Russian countryside, he is known as Pakhom. On one of the days where the Devil listened intently on the conversations within his house, over how their lives in the countryside is better than that in the city, our protagonist has intrigued the Devil by saying that, “Our [peasants] one trouble is – so little land. If I only have as much land as I wanted, I shouldn’t be afraid of any one – even of the Devil.” It sorts of suggest to us that a peasant’s life is simple, it is just enough for a man and his family to live meagerly each day; and that this kind of meek life is okay, but could still get better if he could acquire more for his family and be more secured even from the works of the Devil. Meaning that with the use of a larger piece of land for him to turnover then the more is he assured to provide security for his family and live his meager, fearless, and clean life – and not even the Devil (with the capital ‘D’) could challenge their state and being. After intriguing the Devil, our protagonist has discovered himself in a series of situations where he had the opportunities to increase his holdings. First, when he was able to buy a parcel of the land being managed by the superintendent of a rich, old lady of the town and from his neighbor. Second was when he bought an estate twice as large his current farm in the town of Samara, in the province of Volga; and last was when a visiting merchant has told him about the bountiful and cheap properties on the land of the Bashkirs. These situations alone tells us that there is some kind of a force that pushes the condition of Pakhom’s state to move forward, it is just odd to note that upon his financial ascent Pakhom seemed to fear more people each time he acquires more, contrary to a so called peasants’ life both him and his wife claims to be. Analyzing the character of our protagonist I put forward that he is a man that doesn’t know where to put his limitations, when to call it a night, when is something sufficient, when is something reasonable maybe, when to stop. This I would prove on how he responded on the situations that came about in the story. It started when he was about to make his first purchase of ten dessyatins of land from an old lady of the town, then backed-out to purchase a larger piece of 15 dessyatins of property. Such size is still manageable but made him come to a certain extent that the farm animals of his neighbors that eat his crops threaten him. He then fines them through a court order from the city. This tells us a contradiction to the part of Pakhom, since a larger piece should provide more peace, rather it made his relationship with his neighbor coercive. After such purchase, our protagonist seemed to be always eager in making more to acquire more land to till, also another contradiction in his part since he claims that a his simple and meager life is good and that a little more of earth could be just fine and helpful, but in the course of the selection we saw that we pushed on until to a certain extent that he can’t stop walking to mark a larger piece of property for himself, he became greedy. He has transformed from a peasant farmer into a greedy landlord, no different from his sister-in-law who lives in fear each night and worse yearns to have more than he could handle. The Devil in the story is the force that pushed Pakhom, changed his state in life and his whole being, it represents the opportunities men grabs to advance himself without knowing that it changes them from human into beasts that eats more than think. The Devil in this story can also be seen as the challenger of our protagonist to until what certain extent can his principles and convictions be stretched and he did this “… trough the land.” Ironic really the title, ‘Three Arshins of Land,’ as compared to Pakhom’s horde over large parcel of earth. What is it trying to tell us is that we could be landlords in our own right, be great generals and conquer the east passing through the west, but the pieces of land we acquire is never for us to keep, we just borrow from this good clearing for in the end, we just need three arshins of land for our bodies to eternally rest.
Soviet Russia as depicted by the poem is a narrow country with little spaces to move and be about. It is clouded with fear since the government controls its people with this arm. Literature is also censored or strictly not available, nothing but communist books must be read that leads to the boredom, and depression of the people since there are no good and creative novels, poems, and the likes to fill their days. Spies are everywhere, the government always suspicious about the movement of the Russians, no one can be trusted, one false move against the government is enough to erase you and all the petty falsehood one has committed his entire life. One simply dies at night when everyone is being watched sleeping silently on their small homes. The government tells the international community that its people are prosperous and their children don’t go hungry through the day, where it is actually the other way around, that their children aches each night out of hunger because the rations of food came late this week. All should look and say the same in the Soviet Union, like “Typewriters (are) chattering a carbon-copy answer…” The arts has a place somehow in the country but cannot express its being, since it’s the way the government goes, it should be between the clenches of their control. The persona, I think prefers to live in the City of No, since even though its suspicious, fearful, false, and gloomy it is where he first grew up in. Though he claims to get out of it every once in a while, he never gets tired or bored of the city unlike on the City of Yes, amidst all the good things to do. The sense of familiarity could have made the sad things of the City of No be of the ordinary to the persona and let him but appreciate the beauty of a Yes City life but not really live its life. The convention of No City has taken away from our persona the chance to appreciate the freedom he has on the latter, since his capability to appreciate such life has been diminished if not taken away by his guarded life in the City of No. In the same light, I will obviously choose the City of Yes, since my current free life tells me to live in a way that I am free from all dejection, fear, and suppression. My current free life diminished my capability if it didn’t took away all of it to appreciate a life such that in the City of No. My familiarity with laughter and free activities would make me feel bored and threatened in the No City because there are no such things available in it. I choose the Yes City over the No City not because its better, rather it is due to my biases and my capability as person to live in it.

***

This is a republication of an article I have electronically published last 23 August 2006.

I would like to express my deepest gratitude to Dr. Susie Macapagal of the Faculty of Arts and Letters for introducing me to the wonderful world of Russian Literature.

untitled

There are many things to say, or may be write, but just like before I cannot seem find the words or may be the courage to just let all of it out.  This year has been tragic… however, amidst the darkness and chaos, I am very much aware that these all came for the Almighty loves me so much, that He knows that these trials are for me to conquer… to live a life of colorful array, to show me me His infinite love, to let me see that I have a lot of things to change in my life, and that I have what it takes to ‘be.’

I am very much thankful for my family.  First to my immediate family, that although we may be plural and diverse we share one denominator in different forms and tangents.  Second, to my extended family, that amidst all the problems and intense shaking I still find the courage to love you all.  Third, to my friends (including my Brods) who have always been very loyal, thank you for always being there for me.  I thank you very much for the unsolicited help, the honest words, and kindness.

I am very much thankful for San Sebastian College- Recoletos, College of Law.  First,  to __________________ for allowing me (and every student for that matter) to see that we have what it takes to top the bar.  For not only making difficult concepts easy and simple, but more over, for INSPIRING us to push through; especially when all the world and including ourselves have already given up.  Thank you very much Sir, for not only being our mentor but also our father, our friend, and most of all our enabler.  Second, to _______________ for showing us ‘tough love’ in the most raw (and bloody) sense of it raised to the nth power.  For settling for nothing more but the very best.  Third, to ______________________ for allowing me to see that I can write again.; to ________________ for your passion for debate.  To my LEC Family… so many things to do so little time… need I say more?

As the year technically ends, there are a lot of challenges ahead.  Plots are now made and awaiting their execution.  We might just lose our house this coming months, and that might just be the beginning of the things unfolding.  Lord God, give us all the strength and the courage to traverse all these…

I also need to get my act together… I need to get my weight under control as of the moment it is on the limbo; and I need to be healthy, i need to quit smoking…

I need to start reviewing for the bar!!!

I need to be more happy!

9/26

I join the thousands in disgust to the perpetrators of the 9/26 Bar Blast.  There are simply no words to describe the ‘evil’ that man can conjure for such waste and senselessness.

G.R. No. 191002

Republic of the Philippines

Supreme Court

Manila

EN BANC

ARTURO M. DE CASTRO,

Petitioner,

versus -

JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL – ARROYO,

Respondents.

x – – – – – – – – – – – – – – – – – – – – – – – x

JAIME N. SORIANO,

Petitioner,

versus -

JUDICIAL AND BAR COUNCIL (JBC),

Respondent.

x – – – – – – – – – – – – – – – – – – – – – – – x

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),

Petitioner,

versus -

JUDICIAL AND BAR COUNCIL (JBC),

Respondent.

x – – – – – – – – – – – – – – – – – – – – – – – x

IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY,

ESTELITO P. MENDOZA,

Petitioner,

x – – – – – – – – – – – – – – – – – – – – – – – x

JOHN G. PERALTA,

Petitioner,

versus -

JUDICIAL AND BAR COUNCIL (JBC).

Respondent.

x – – – – – – – – – – – – – – – – – – – – – – – -x

PETER IRVING CORVERA;

CHRISTIAN ROBERT S. LIM;

ALFONSO V. TAN, JR.;

NATIONAL UNION OF PEOPLE’S LAWYERS;

MARLOU B. UBANO;

INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its Immediate Past President, ATTY. ISRAELITO P. TORREON, and the latter in his own personal capacity as a MEMBER of the PHILIPPINE BAR;

MITCHELL JOHN L. BOISER;

BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES, JR.; CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT OF GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE; KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN NG SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP) CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA;

WALDEN F. BELLO and LORETTA ANN P. ROSALES;

WOMEN TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by YOLANDA QUISUMBING-

JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON.

Intervenors.

x – – – – – – – – – – – – – – – – – – – – – – – -x

ATTY. AMADOR  Z. TOLENTINO, JR., (IBP

Governor–Southern Luzon), and ATTY. ROLAND B. INTING

(IBP Governor–Eastern Visayas),

Petitioners,

- versus -

JUDICIAL AND BAR COUNCIL (JBC),

Respondent.

x – – – – – – – – – – – – – – – – – – – – – – – x

PHILIPPINE BAR ASSOCIATION, INC.,

Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO,

Respondents.

G. R. No. 191002

G.R. No. 191032

G.R. No. 191057

A.M. No. 10-2-5-SC

G.R. No. 191149

G.R. No. 191342

G.R. No. 191420

Present:

PUNO, C.J.,

CARPIO,

CORONA,

CARPIO MORALES,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ, and

MENDOZA, JJ.

Promulgated:

March 17, 2010

x—————————————————————————————–x

D E C I S I O N

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. 191002 and G.R. No. 191149 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.

In G.R. No. 191032, Jaime N. Soriano, via his petition for prohibition, proposes to prevent the JBC from conducting its search, selection and nomination proceedings for the position of Chief Justice.

In G.R. No. 191057, a special civil action for mandamus, the Philippine Constitution Association (PHILCONSA) wants the JBC to submit its list of nominees for the position of Chief Justice to be vacated by Chief Justice Puno upon his retirement on May 17, 2010, because the incumbent President is not covered by the prohibition that applies only to appointments in the Executive Department.

In Administrative Matter No. 10-2-5-SC, petitioner Estelito M. Mendoza, a former Solicitor General, seeks a ruling from the Court for the guidance of the JBC on whether Section 15, Article VII applies to appointments to the Judiciary.

In G.R. No. 191342, which the Court consolidated on March 9, 2010 with the petitions earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated Bar of the Philippines (IBP) Governors for Southern Luzon and Eastern Visayas, respectively, want to enjoin and restrain the JBC from submitting a list of nominees for the position of Chief Justice to the President for appointment during the period provided for in Section 15, Article VII.

All the petitions now before the Court pose as the principal legal question whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement. That question is undoubtedly impressed with transcendental importance to the Nation, because the appointment of the Chief Justice is any President’s most important appointment.

A precedent frequently cited is 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, respectively (Valenzuela), by which the Court held that Section 15, Article VII prohibited the exercise by the President of the power to appoint to judicial positions during the period therein fixed.

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. 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.”

In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse of discretion amounting to lack or excess of its jurisdiction when it resolved unanimously on January 18, 2010 to open the search, nomination, and selection process for the position of Chief Justice to succeed Chief Justice Puno, because the appointing authority for the position of Chief Justice is the Supreme Court itself, the President’s authority being limited to the appointment of the Members of the Supreme Court. Hence, the JBC should not intervene in the process, unless a nominee is not yet a Member of the Supreme Court.

For its part, PHILCONSA observes in its petition in G.R. No. 191057 that “unorthodox and exceptional circumstances spawned by the discordant interpretations, due perhaps to a perfunctory understanding, of Sec. 15, Art. VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII of the Constitution” have bred “a frenzied inflammatory legal debate on the constitutional provisions mentioned that has divided the bench and the bar and the general public as well, because of its dimensional impact to the nation and the people,” thereby fashioning “transcendental questions or issues affecting the JBC’s proper exercise of its “principal function of recommending appointees to the Judiciary” by submitting only to the President (not to the next President) “a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy” from which the members of the Supreme Court and judges of the lower courts may be appointed.” PHILCONSA further believes and submits that now is the time to revisit and review Valenzuela, the “strange and exotic Decision of the Court en banc.”

Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC “to immediately transmit to the President, within a reasonable time, its nomination list for the position of chief justice upon the mandatory retirement of Chief Justice Reynato S. Puno, in compliance with its mandated duty under the Constitution” in the event that the Court resolves that the President can appoint a Chief Justice even during the election ban under Section 15, Article VII of the Constitution.

The petitioners in G.R. No. 191342 insist that there is an actual controversy, considering that the “JBC has initiated the process of receiving applications for the position of Chief Justice and has in fact begun the evaluation process for the applications to the position,” and “is perilously near completing the nomination process and coming up with a list of nominees for submission to the President, entering into the period of the ban on midnight appointments on March 10, 2010,” which “only highlights the pressing and compelling need for a writ of prohibition to enjoin such alleged ministerial function of submitting the list, especially if it will be cone within the period of the ban on midnight appointments.”

Antecedents

These cases trace their genesis to the controversy that has arisen from the forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after the presidential election. Under Section 4(1), in relation to Section 9, Article VIII, that “vacancy shall be filled within ninety days from the occurrence thereof” from a “list of at least three nominees prepared by the Judicial and Bar Council for every vacancy.”

On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the JBC, addressed a letter to the JBC, requesting that the process for nominations to the office of the Chief Justice be commenced immediately.

In its January 18, 2010 meeting en banc, therefore, the JBC passed a resolution, which reads:

The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling up the position of Chief Justice to be vacated on May 17, 2010 upon the retirement of the incumbent Chief Justice Honorable Reynato S. Puno.

It will publish the opening of the position for applications or recommendations; deliberate on the list of candidates; publish the names of candidates; accept comments on or opposition to the applications; conduct public interviews of candidates; and prepare the shortlist of candidates.

As to the time to submit this shortlist to the proper appointing authority, in the light of the Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all views on the matter.

18 January 2010.

(sgd.)

MA. LUISA D. VILLARAMA

Clerk of Court &

Ex-Officio Secretary

Judicial and Bar Council

As a result, the JBC opened the position of Chief Justice for application or recommendation, and published for that purpose its announcement dated January 20, 2010, viz:

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:

The announcement was published on January 20, 2010 in the Philippine Daily Inquirer and The Philippine Star.

Conformably with its existing practice, the JBC “automatically considered” for the position of Chief Justice the five most senior of the Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the last two declined their nomination through letters dated January 18, 2010 and January 25, 2010, respectively.

Others either applied or were nominated. Victor Fernandez, the retired Deputy Ombudsman for Luzon, applied, but later formally withdrew his name from consideration through his letter dated February 8, 2010. Candidates who accepted their nominations without conditions were Associate Justice Renato C. Corona; Associate Justice Teresita J. Leonardo-De Castro; Associate Justice Arturo D. Brion; and Associate Justice Edilberto G. Sandoval (Sandiganbayan). Candidates who accepted their nominations with conditions were Associate Justice Antonio T. Carpio and Associate Justice Conchita Carpio Morales. Declining their nominations were Atty. Henry Villarica (via telephone conversation with the Executive Officer of the JBC on February 5, 2010) and Atty. Gregorio M. Batiller, Jr. (via telephone conversation with the Executive Officer of the JBC on February 8, 2010).

The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to meet the standards set by the JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the Office of the Ombudsman (due to cases pending in the Office of the Ombudsman).

In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the following candidates to invite the public to file their sworn complaint, written report, or opposition, if any, not later than February 22, 2010, to wit: Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales, Associate Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice Sandoval. The announcement came out in the Philippine Daily Inquirer and The Philippine Star issues of February 13, 2010.

Issues

Although it has already begun the process for the filling of the position of Chief Justice Puno in accordance with its rules, the JBC is not yet decided on when to submit to the President its list of nominees for the position due to the controversy now before us being yet unresolved. In the meanwhile, time is marching in quick step towards May 17, 2010 when the vacancy occurs upon the retirement of Chief Justice Puno.

The actions of the JBC have sparked a vigorous debate not only among legal luminaries, but also among non-legal quarters, and brought out highly disparate opinions on whether the incumbent President can appoint the next Chief Justice or not. Petitioner Mendoza notes that in Valenzuela, which involved the appointments of two judges of the Regional Trial Court, the Court addressed this issue now before us as an administrative matter “to avoid any possible polemics concerning the matter,” but he opines that the polemics leading to Valenzuela “would be miniscule [sic] compared to the “polemics” that have now erupted in regard to the current controversy,” and that unless “put to a halt, and this may only be achieved by a ruling from the Court, the integrity of the process and the credibility of whoever is appointed to the position of Chief Justice, may irreparably be impaired.”

Accordingly, we reframe the issues as submitted by each petitioner in the order of the chronological filing of their petitions.

G.R. No. 191002

a.   Does the JBC have the power and authority to resolve the constitutional question of whether the incumbent President can appoint a Chief Justice during the election ban period?

b.   Does the incumbent President have the power and authority to appoint during the election ban the successor of Chief Justice Puno when he vacates the position of Chief Justice on his retirement on May 17, 2010?

G.R. No. 191032

a.  Is the power to appoint the Chief Justice vested in the Supreme Court en banc?

G.R. No. 191057

a.   Is the constitutional prohibition against appointment under Section 15, Article VII of the Constitution applicable only to positions in the Executive Department?

b.  Assuming that the prohibition under Section 15, Article VII of the Constitution also applies to members of the Judiciary, may such appointments be excepted because they are impressed with public interest or are demanded by the exigencies of public service, thereby justifying these appointments during the period of prohibition?

c. Does the JBC have the authority to decide whether or not to include and submit the names of nominees who manifested interest to be nominated for the position of Chief Justice on the understanding that his/her nomination will be submitted to the next President in view of the prohibition against presidential appointments from March 11, 2010 until June 30, 2010?

A. M. No. 10-2-5-SC

a.  Does Section 15, Article VII of the Constitution apply to appointments to positions in the Judiciary under Section 9, Article VIII of the Constitution?

b. May President Gloria Macapagal-Arroyo make appointments to the Judiciary after March 10, 2010, including that for the position of Chief Justice after Chief Justice Puno retires on May 17, 2010?

G.R. No. 191149

a.  Does the JBC have the discretion to withhold the submission of the short list to President Gloria Macapagal-Arroyo?

G.R. No. 191342

a.     Does the JBC have the authority to submit the list of nominees to the incumbent President without committing a grave violation of the Constitution and jurisprudence prohibiting the incumbent President from making midnight appointments two months immediately preceding the next presidential elections until the end of her term?

b.     Is any act performed by the JBC, including the vetting of the candidates for the position of Chief Justice, constitutionally invalid in view of the JBC’s illegal composition allowing each member from the Senate and the House of Representatives to have one vote each?

On February 16, 2010, the Court directed the JBC and the Office of the Solicitor General (OSG) to comment on the consolidated petitions, except that filed in G.R. No. 191342.

On February 26, 2010, the JBC submitted its comment, reporting therein that the next stage of the process for the selection of the nominees for the position of Chief Justice would be the public interview of the candidates and the preparation of the short list of candidates, “including the interview of the constitutional experts, as may be needed.” It stated:

Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper appointing authority, in light of Section 4 (1), Article VIII of the Constitution, which provides that vacancy in the Supreme Court shall be filled within ninety (90) days from the occurrence thereof, Section 15, Article VII of the Constitution concerning the ban on Presidential appointments “two (2) months immediately before the next presidential elections and up to the end of his term” and Section 261 (g), Article XXII of the Omnibus Election Code of the Philippines.

12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the JBC will be guided by its decision in these consolidated Petitions and Administrative Matter.

On February 26, 2010, the OSG also submitted its comment, essentially stating that the incumbent President can appoint the successor of Chief Justice Puno upon his retirement by May 17, 2010.

The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from performing its principal function under the Constitution to recommend appointees in the Judiciary; (b) the JBC’s function to recommend is a “continuing process,” which does not begin with each vacancy or end with each nomination, because the goal is “to submit the list of nominees to Malacañang on the very day the vacancy arises”; the JBC was thus acting within its jurisdiction when it commenced and set in motion the process of selecting the nominees to be submitted to the President for the position of Chief Justice to be vacated by Chief Justice Puno; (c) petitioner Soriano’s theory that it is the Supreme Court, not the President, who has the power to appoint the Chief Justice, is incorrect, and proceeds from his misinterpretation of the phrase “members of the Supreme Court” found in Section 9, Article VIII of the Constitution as referring only to the Associate Justices, to the exclusion of the Chief Justice; (d) a writ of mandamus can issue to compel the JBC to submit the list of nominees to the President, considering that its duty to prepare the list of at least three nominees is unqualified, and the submission of the list is a ministerial act that the JBC is mandated to perform under the Constitution; as such, the JBC, the nature of whose principal function is executive, is not vested with the power to resolve who has the authority to appoint the next Chief Justice and, therefore, has no discretion to withhold the list from the President; and (e) a writ of mandamus cannot issue to compel the JBC to include or exclude particular candidates as nominees, considering that there is no imperative duty on its part to include in or exclude from the list particular individuals, but, on the contrary, the JBC’s determination of who it nominates to the President is an exercise of a discretionary duty.

The OSG contends that the incumbent President may appoint the next Chief Justice, because the prohibition under Section 15, Article VII of the Constitution does not apply to appointments in the Supreme Court. It argues that any vacancy in the Supreme Court must be filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the Constitution; that in their deliberations on the mandatory period for the appointment of Supreme Court Justices, the framers neither mentioned nor referred to the ban against midnight appointments, or its effects on such period, or vice versa; that had the framers intended the prohibition to apply to Supreme Court appointments, they could have easily expressly stated so in the Constitution, which explains why the prohibition found in Article VII (Executive Department) was not written in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII ample restrictions or limitations on the President’s power to appoint members of the Supreme Court to ensure its independence from “political vicissitudes” and its “insulation from political pressures,” such as stringent qualifications for the positions, the establishment of the JBC, the specified period within which the President shall appoint a Supreme Court Justice.

The OSG posits that although Valenzuela involved the appointment of RTC Judges, the situation now refers to the appointment of the next Chief Justice to which the prohibition does not apply; that, at any rate, Valenzuela even recognized that there might be “the imperative need for an appointment during the period of the ban,” like when the membership of the Supreme Court should be “so reduced that it will have no quorum, or should the voting on a particular important question requiring expeditious resolution be divided”; and that Valenzuela also recognized that the filling of vacancies in the Judiciary is undoubtedly in the public interest, most especially if there is any compelling reason to justify the making of the appointments during the period of the prohibition.

Lastly, the OSG urges that there are now undeniably compelling reasons for the incumbent President to appoint the next Chief Justice, to wit: (a) a deluge of cases involving sensitive political issues is “quite expected”; (b) the Court acts as the Presidential Electoral Tribunal (PET), which, sitting en banc, is the sole judge of all contests relating to the election, returns, and qualifications of the President and Vice President and, as such, has “the power to correct manifest errors on the statement of votes (SOV) and certificates of canvass (COC)”; (c) if history has shown that during ordinary times the Chief Justice was appointed immediately upon the occurrence of the vacancy, from the time of the effectivity of the Constitution, there is now even more reason to appoint the next Chief Justice immediately upon the retirement of Chief Justice Puno; and (d) should the next Chief Justice come from among the incumbent Associate Justices of the Supreme Court, thereby causing a vacancy, it also becomes incumbent upon the JBC to start the selection process for the filling up of the vacancy in accordance with the constitutional mandate.

On March 9, 2010, the Court admitted the following comments/oppositions-in-intervention, to wit:

(a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving Corvera (Corvera);

(b) The opposition-in-intervention dated February 22, 2010 of Atty. Christian Robert S. Lim (Lim);

(c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso V. Tan, Jr. (Tan);

(d) The comment/opposition-in-intervention dated March 1, 2010 of the National Union of People’s Lawyers (NUPL);

(e) The opposition-in-intervention dated February 25, 2010 of Atty. Marlou B. Ubano (Ubano);

(f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the Philippines-Davao del Sur Chapter and its Immediate Past President, Atty. Israelito P. Torreon (IBP- Davao del Sur);

(g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L. Boiser (Boiser);

(h)The consolidated comment/opposition-in-intervention dated February 26, 2010 of BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary General Renato M. Reyes, Jr.; Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY) Secretary General Gloria Arellano; Alyansa ng Nagkakaisang Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo ang Pag-asa Convenor Alvin Peters; League of Filipino Students (LFS) Chairman James Mark Terry Lacuanan Ridon; National Union of Students of the Philippines (NUSP) Chairman Einstein Recedes, College Editors Guild of the Philippines (CEGP) Chairman Vijae Alquisola; and Student Christian Movement of the Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et al.);

(i) The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and Loretta Ann P. Rosales (Bello et al.); and

(j) The consolidated comment/opposition-in-intervention dated March 4, 2010 of the Women Trial Lawyers Organization of the Philippines (WTLOP), represented by Atty. Yolanda Quisumbing-Javellana; Atty. Belleza Alojado Demaisip; Atty. Teresita Gandionco-Oledan; Atty. Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta. Romana; Atty. Leonila de Jesus; and Atty. Guinevere de Leon (WTLOP).

Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL take the position that De Castro’s petition was bereft of any basis, because under Section 15, Article VII, the outgoing President is constitutionally banned from making any appointments from March 10, 2010 until June 30, 2010, including the appointment of the successor of Chief Justice Puno. Hence, mandamus does not lie to compel the JBC to submit the list of nominees to the outgoing President if the constitutional prohibition is already in effect. Tan adds that the prohibition against midnight appointments was applied by the Court to the appointments to the Judiciary made by then President Ramos, with the Court holding that the duty of the President to fill the vacancies within 90 days from occurrence of the vacancies (for the Supreme Court) or from the submission of the list (for all other courts) was not an excuse to violate the constitutional prohibition.

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.

ice 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.

Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus Election Code penalizes as an election offense the act of any government official who appoints, promotes, or gives any increase in salary or remuneration or privilege to any government official or employee during the period of 45 days before a regular election; that the provision covers all appointing heads, officials, and officers of a government office, agency or instrumentality, including the President; that for the incumbent President to appoint the next Chief Justice upon the retirement of Chief Justice Puno, or during the period of the ban under the Omnibus Election Code, constitutes an election offense; that even an appointment of the next Chief Justice prior to the election ban is fundamentally invalid and without effect because there can be no appointment until a vacancy occurs; and that the vacancy for the position can occur only by May 17, 2010.

Intervenor Boiser adds that De Castro’s prayer to compel the submission of nominees by the JBC to the incumbent President is off-tangent because the position of Chief Justice is still not vacant; that to speak of a list, much more a submission of such list, before a vacancy occurs is glaringly premature; that the proposed advance appointment by the incumbent President of the next Chief Justice will be unconstitutional; and that no list of nominees can be submitted by the JBC if there is no vacancy.

All the intervenors-oppositors submit that Section 15, Article VII makes no distinction between the kinds of appointments made by the President; and that the Court, in Valenzuela, ruled that the appointments by the President of the two judges during the prohibition period were void.

Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not apply only to the appointments in the Executive Department, but also to judicial appointments, contrary to the submission of PHILCONSA; that Section 15 does not distinguish; and that Valenzuela already interpreted the prohibition as applicable to judicial appointments.

Intervenor WTLOP further posits that petitioner Soriano’s contention that the power to appoint the Chief Justice is vested, not in the President, but in the Supreme Court, is utterly baseless, because the Chief Justice is also a Member of the Supreme Court as contemplated under Section 9, Article VIII; and that, at any rate, the term “members” was interpreted in Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to the Chief Justice and the Associate Justices of the Supreme Court; that PHILCONSA’s prayer that the Court pass a resolution declaring that persons who manifest their interest as nominees, but with conditions, shall not be considered nominees by the JBC is diametrically opposed to the arguments in the body of its petition; that such glaring inconsistency between the allegations in the body and the relief prayed for highlights the lack of merit of PHILCONSA’s petition; that the role of the JBC cannot be separated from the constitutional prohibition on the President; and that the Court must direct the JBC to follow the rule of law, that is, to submit the list of nominees only to the next duly elected President after the period of the constitutional ban against midnight appointments has expired.

Oppositor IBP Davao del Sur opines that the JBC – because it is neither a judicial nor a quasi-judicial body – has no duty under the Constitution to resolve the question of whether the incumbent President can appoint a Chief Justice during the period of prohibition; that even if the JBC has already come up with a short list, it still has to bow to the strict limitations under Section 15, Article VII; that should the JBC defer submission of the list, it is not arrogating unto itself a judicial function, but simply respecting the clear mandate of the Constitution; and that the application of the general rule in Section 15, Article VII to the Judiciary does not violate the principle of separation of powers, because said provision is an exception.

Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBC’s act of nominating appointees to the Supreme Court is purely ministerial and does not involve the exercise of judgment; that there can be no default on the part of the JBC in submitting the list of nominees to the President, considering that the call for applications only begins from the occurrence of the vacancy in the Supreme Court; and that the commencement of the process of screening of applicants to fill the vacancy in the office of the Chief Justice only begins from the retirement on May 17, 2010, for, prior to this date, there is no definite legal basis for any party to claim that the submission or non-submission of the list of nominees to the President by the JBC is a matter of right under law.

The main question presented in all the filings herein – because it involves two seemingly conflicting provisions of the Constitution – imperatively demands the attention and resolution of this Court, the only authority that can resolve the question definitively and finally. The imperative demand rests on the ever-present need, first, to safeguard the independence, reputation, and integrity of the entire Judiciary, particularly this Court, an institution that has been unnecessarily dragged into the harsh polemics brought on by the controversy; second, to settle once and for all the doubt about an outgoing President’s power to appoint to the Judiciary within the long period starting two months before the presidential elections until the end of the presidential term; and third, to set a definite guideline for the JBC to follow in the discharge of its primary office of screening and nominating qualified persons for appointment to the Judiciary.

Thus, we resolve.

Ruling of the Court

Locus Standi of Petitioners

The preliminary issue to be settled is whether or not the petitioners have locus standi.

Black defines locus standi as “a right of appearance in a court of justice on a given question.” In public or constitutional litigations, the Court is often burdened with the determination of the locus standi of the petitioners due to the ever-present need to regulate the invocation of the intervention of the Court to correct any official action or policy in order to avoid obstructing the efficient functioning of public officials and offices involved in public service. It is required, therefore, that the petitioner must have a personal stake in the outcome of the controversy, for, as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:

The question on legal standing is whether such parties have “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Accordingly, it has been held that the interest of a person assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.

It is true that as early as in 1937, in People v. Vera, the Court adopted the direct injury test for determining whether a petitioner in a public action had locus standi. There, the Court held that the person who would assail the validity of a statute must have “a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result.” Vera was followed in Custodio v. President of the Senate, Manila Race Horse Trainers’ Association v. De la Fuente, Anti-Chinese League of the Philippines v. Felix, and Pascual v. Secretary of Public Works.

Yet, the Court has also held that the requirement of locus standi, being a mere procedural technicality, can be waived by the Court in the exercise of its discretion. For instance, in 1949, in Araneta v. Dinglasan, the Court liberalized the approach when the cases had “transcendental importance.” Some notable controversies whose petitioners did not pass the direct injury test were allowed to be treated in the same way as in Araneta v. Dinglasan.

In the 1975 decision in Aquino v. Commission on Elections, this Court decided to resolve the issues raised by the petition due to their “far-reaching implications,” even if the petitioner had no personality to file the suit. The liberal approach of Aquino v. Commission on Elections has been adopted in several  notable  cases,  permitting  ordinary  citizens,  legislators,  and  civic

organizations to bring their suits involving the constitutionality or validity of laws, regulations, and rulings.

However, the assertion of a public right as a predicate for challenging a supposedly illegal or unconstitutional executive or legislative action rests on the theory that the petitioner represents the public in general. Although such petitioner may not be as adversely affected by the action complained against as are others, it is enough that he sufficiently demonstrates in his petition that he is entitled to protection or relief from the Court in the vindication of a public right.

Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus standi. That is not surprising, for even if the issue may appear to concern only the public in general, such capacities nonetheless equip the petitioner with adequate interest to sue. In David v. Macapagal-Arroyo, the Court aptly explains why:

Case law in most jurisdictions now allows both “citizen” and “taxpayer” standing in public actions. The distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:In matter of mere public right, however…the people are the real parties…It is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied.” With respect to taxpayer’s suits, Terr v. Jordan held that “the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied.

Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta (G.R. No. 191149) all assert their right as citizens filing their petitions on behalf of the public who are directly affected by the issue of the appointment of the next Chief Justice. De Castro and Soriano further claim standing as taxpayers, with Soriano averring that he is affected by the continuing proceedings in the JBC, which involve “unnecessary, if not, illegal disbursement of public funds.”

PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the law for the purpose of defending, protecting, and preserving the Constitution and promoting its growth and flowering. It also alleges that the Court has recognized its legal standing to file cases on constitutional issues in several cases.

In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a member of the Philippine Bar engaged in the active practice of law, and a former Solicitor General, former Minister of Justice, former Member of the Interim Batasang Pambansa and the Regular Batasang Pambansa, and former member of the Faculty of the College of Law of the University of the Philippines.

The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the Philippines (IBP) for Southern Luzon and Eastern Visayas. They allege that they have the legal standing to enjoin the submission of the list of nominees by the JBC to the President, for “[a]n adjudication of the proper interpretation and application of the constitutional ban on midnight appointments with regard to respondent JBC’s function in submitting the list of nominees is well within the concern of petitioners, who are duty bound to ensure that obedience and respect for the Constitution is upheld, most especially by government offices, such as respondent JBC, who are specifically tasked to perform crucial functions in the whole scheme of our democratic institution.” They further allege that, reposed in them as members of the Bar, is a clear legal interest in the process of selecting the members of the Supreme Court, and in the selection of the Chief Justice, considering that the person appointed becomes a member of the body that has constitutional supervision and authority over them and other members of the legal profession.

The Court rules that the petitioners have each demonstrated adequate interest in the outcome of the controversy as to vest them with the requisite locus standi. 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.

In any event, the Court retains the broad discretion to waive the requirement of legal standing in favor of any petitioner when the matter involved has transcendental importance, or otherwise requires a liberalization of the requirement.

Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt now in order to remove any obstacle or obstruction to the resolution of the essential issue squarely presented herein. We are not to shirk from discharging our solemn duty by reason alone of an obstacle more technical than otherwise. In Agan, Jr. v. Philippine International Air Terminals Co., Inc., we pointed out: “Standing is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest.” But even if, strictly speaking, the petitioners “are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised.”

Justiciability

Intervenor NUPL maintains that there is no actual case or controversy that is appropriate or ripe for adjudication, considering that although the selection process commenced by the JBC is going on, there is yet no final list of nominees; hence, there is no imminent controversy as to whether such list must be submitted to the incumbent President, or reserved for submission to the incoming President.

Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for judicial determination, pointing out that petitioner De Castro has not even shown that the JBC has already completed its selection process and is now ready to submit the list to the incumbent President; and that petitioner De Castro is merely presenting a hypothetical scenario that is clearly not sufficient for the Court to exercise its power of judicial review.

Intervenors Corvera and Lim separately opine that De Castro’s petition rests on an overbroad and vague allegation of political tension, which is insufficient basis for the Court to exercise its power of judicial review.

Intervenor BAYAN et al. contend that the petitioners are seeking a mere advisory opinion on what the JBC and the President should do, and are not invoking any issues that are justiciable in nature.

Intervenors Bello et al. submit that there exist no conflict of legal rights and no assertion of opposite legal claims in any of the petitions; that PHILCONSA does not allege any action taken by the JBC, but simply avers that the conditional manifestations of two Members of the Court, accented by the divided opinions and interpretations of legal experts, or associations of lawyers and law students on the issues published in the daily newspapers are “matters of paramount and transcendental importance to the bench, bar and general public”; that PHILCONSA fails not only to cite any legal duty or allege any failure to perform the duty, but also to indicate what specific action should be done by the JBC; that Mendoza does not even attempt to portray the matter as a controversy or conflict of rights, but, instead, prays that the Court should “rule for the guidance of” the JBC; that the fact that the Court supervises the JBC does not automatically imply that the Court can rule on the issues presented in the Mendoza petition, because supervision involves oversight, which means that the subordinate officer or body must first act, and if such action is not in accordance with prescribed rules, then, and only then, may the person exercising oversight order the action to be redone to conform to the prescribed rules; that the Mendoza petition does not allege that the JBC has performed a specific act susceptible to correction for being illegal or unconstitutional; and that the Mendoza petition asks the Court to issue an advisory ruling, not to exercise its power of supervision to correct a wrong act by the JBC, but to declare the state of the law in the absence of an actual case or controversy.

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. Although the position is not yet vacant, the fact that the JBC began the process of nomination pursuant to its rules and practices, although it has yet to decide whether to submit the list of nominees to the incumbent outgoing President or to the next President, makes the situation ripe for judicial determination, because the next steps are the public interview of the candidates, the preparation of the short list of candidates, and the “interview of constitutional experts, as may be needed.”

A part of the question to be reviewed by the Court is whether the JBC properly initiated the process, there being an insistence from some of the oppositors-intervenors that the JBC could only do so once the vacancy has occurred (that is, after May 17, 2010). Another part is, of course, whether the JBC may resume its process until the short list is prepared, in view of the provision of Section 4(1), Article VIII, which unqualifiedly requires the President to appoint one from the short list to fill the vacancy in the Supreme Court (be it the Chief Justice or an Associate Justice) within 90 days from the occurrence of the vacancy.

The ripeness of the controversy for judicial determination may not be doubted. The challenges to the authority of the JBC to open the process of nomination and to continue the process until the submission of the list of nominees; the insistence of some of the petitioners to compel the JBC through mandamus to submit the short list to the incumbent President; the counter-insistence of the intervenors to prohibit the JBC from submitting the short list to the incumbent President on the ground that said list should be submitted instead to the next President; the strong position that the incumbent President is already prohibited under Section 15, Article VII from making any appointments, including those to the Judiciary, starting on May 10, 2010 until June 30, 2010; and the contrary position that the incumbent President is not so prohibited are only some of the real issues for determination. All such issues establish the ripeness of the controversy, considering that for some the short list must be submitted before the vacancy actually occurs by May 17, 2010. The outcome will not be an abstraction, or a merely hypothetical exercise. The resolution of the controversy will surely settle – with finality – the nagging questions that are preventing the JBC from moving on with the process that it already began, or that are reasons persuading the JBC to desist from the rest of the process.

We need not await the occurrence of the vacancy by May 17, 2010 in order for the principal issue to ripe for judicial determination by the Court. It is enough that one alleges conduct arguably affected with a constitutional interest, but seemingly proscribed by the Constitution. A reasonable certainty of the occurrence of the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the Court has sufficient facts before it to enable it to intelligently adjudicate the issues. Herein, the facts are not in doubt, for only legal issues remain.

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:

Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

The other, Section 4 (1), Article VIII (Judicial Department), states:

Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.

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.

First. The records of the deliberations of the Constitutional Commission reveal that the framers devoted time to meticulously drafting, styling, and arranging the Constitution. Such meticulousness indicates that the organization and arrangement of the provisions of the Constitution were not arbitrarily or whimsically done by the framers, but purposely made to reflect their intention and manifest their vision of what the Constitution should contain.

The Constitution consists of 18 Articles, three of which embody the allocation of the awesome powers of government among the three great departments, the Legislative (Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a true recognition of the principle of separation of powers that underlies the political structure, as Constitutional Commissioner Adolfo S. Azcuna (later a worthy member of the Court) explained in his sponsorship speech:

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.

As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists the powers vested by the Constitution in the President. The presidential power of appointment is dealt with in Sections 14, 15 and 16 of the Article.

Article VIII is dedicated to the Judicial Department and defines the duties and qualifications of Members of the Supreme Court, among others. Section 4(1) and Section 9 of this Article are the provisions specifically providing for the appointment of Supreme Court Justices. In particular, Section 9 states that the appointment of Supreme Court Justices can only be made by the President upon the submission of a list of at least three nominees by the JBC; Section 4(1) of the Article mandates the President to fill the vacancy within 90 days from the occurrence of the vacancy.

Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the President’s or Acting President’s term does not refer to the Members of the Supreme Court.

Although Valenzuela 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.

Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4 (1), Article VIII, viz:

V            . Intent of the Constitutional Commission

The journal of the Commission which drew up the present Constitution discloses that the original proposal was to have an eleven-member Supreme Court. Commissioner Eulogio Lerum wanted to increase the number of Justices to fifteen. He also wished to ensure that that number would not be reduced for any appreciable length of time (even only temporarily), and to this end proposed that any vacancy “must be filled within two months from the date that the vacancy occurs.”  His proposal to have a 15-member Court was not initially adopted.  Persisting however in his desire to make certain that the size  of the Court would not be decreased for any substantial period as a result of vacancies, Lerum proposed the insertion in the provision (anent the Court’s membership) of the same mandate that “IN CASE OF ANY VACANCY, THE SAME SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF.”  He later agreed to suggestions to make the period three, instead of two, months.  As thus amended, the proposal was approved. As it turned out, however, the Commission ultimately agreed on a fifteen-member Court. Thus it was that the section fixing the composition of the Supreme Court came to include a command to fill up any vacancy therein within 90 days from its occurrence.

In this connection, it may be pointed out that that instruction that any “vacancy shall be filled within ninety days” (in the last sentence of Section 4 (1) of Article VIII) contrasts with the prohibition in Section 15, Article VII, which is couched in stronger negative language – that “a President or Acting President shall not make appointments…”

The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph: “WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST” (of nominees by the Judicial and Bar Council to the President). Davide stated that his purpose was to provide a “uniform rule” for lower courts.  According to him, the 90-day period should be counted from submission of the list of nominees to the President in view of the possibility that the President might reject the list submitted to him and the JBC thus need more time to submit a new one.

On the other hand, Section 15, Article VII – which in effect deprives the President of his appointing power “two months immediately before  the next presidential elections up to the end of  his term” – was approved without discussion.

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. 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:

MR. DE CASTRO. I understand that our justices now in the Supreme Court, together with the Chief Justice, are only 11.

MR. CONCEPCION. Yes.

MR. DE CASTRO. And the second sentence of this subsection reads: “Any vacancy shall be filled within ninety days from the occurrence thereof.”

MR. CONCEPCION. That is right.

MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy?

MR. CONCEPCION. That is right. That is borne out of the fact that in the past 30 years, seldom has the Court had a complete complement.

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 Commission’s deliberations on Section 4 (1), Article VIII.

How Valenzuela justified its pronouncement and result is hardly warranted. According to an authority on statutory construction:

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 intent of the legislature. On the other hand, if full effect cannot be given to the words of a statute, they must be made effective as far as possible. Nor should the provisions of a statute which are inconsistent be harmonized at a sacrifice of the legislative intention. It may be that two provisions are irreconcilable; if so, the one which expresses the intent of the law-makers should control. And the arbitrary rule has been frequently announced that where there is an irreconcilable conflict between the different provisions of a statute, the provision last in order of position will prevail, since it is the latest expression of the legislative will. Obviously, the rule is subject to deserved criticism. It is seldom applied, and probably then only where an irreconcilable conflict exists between different sections of the same act, and after all other means of ascertaining the meaning of the legislature have been exhausted. Where the conflict is between two statutes, more may be said in favor of the rule’s application, largely because of the principle of implied repeal.

In this connection, PHILCONSA’s urging of a revisit and a review of Valenzuela is timely and appropriate. 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 one found in Article VII. It further ignored that the two provisions had no irreconcilable conflict, regardless of Section 15, Article VII being couched in the negative. As judges, we are not to unduly interpret, and should not accept an interpretation that defeats the intent of the framers.

Consequently, prohibiting the incumbent President from appointing a Chief Justice on the premise that Section 15, Article VII extends to appointments in the Judiciary cannot be sustained. A misinterpretation like Valenzuela should not be allowed to last after its false premises have been exposed. It will not do to merely distinguish Valenzuela from these cases, for the result to be reached herein is entirely incompatible with what  Valenzuela decreed. Consequently, Valenzuela now deserves to be quickly sent to the dustbin of the unworthy and forgettable.

We reverse Valenzuela.

Second. Section 15, Article VII does not apply as well to all other appointments in the Judiciary.

There is no question that one of the reasons underlying the adoption of Section 15 as part of Article VII was to eliminate midnight appointments from being made by an outgoing Chief Executive in the mold of the appointments dealt with in the leading case of Aytona v. Castillo. In fact, in Valenzuela, the Court so observed, stating that:

xxx it appears that Section 15, Article VII is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within the two months preceding a Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code, viz.:

xxx

The second type of appointments prohibited by Section 15, Article VII consists of the so-called “midnight” appointments. In Aytona v. Castillo, it was held that after the proclamation of Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in his bid for reelection, became no more than a “caretaker” administrator whose duty was to “prepare for the orderly transfer of authority to the incoming President.”  Said the Court:

The filling up of vacancies in  important positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and appointee’s qualifications may undoubtedly be permitted.  But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding appointments.”

As indicated, the Court recognized that there may well be appointments to important positions which have to be made even after the proclamation of the new President.  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. Accordingly, several appointments made by President Garcia, which were shown to have been well considered, were upheld.

Section 15, Article VII has a broader scope than the Aytona ruling.  It may not unreasonably be deemed to contemplate not only “midnight” appointments – those made obviously for partisan reasons as shown by their number and the time of their making – but also appointments presumed made for the purpose of influencing the outcome of the Presidential election.

On the other hand, the exception in the same Section 15 of Article VII – allowing appointments to be made during the period of the ban therein provided – is much narrower than that recognized in Aytona.  The exception allows only the making of temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. Obviously, the article greatly restricts the appointing power of the President during the period of the ban.

Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on the President’s power of appointment, it is this Court’s 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.

Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that the Constitutional Commission confined the prohibition to appointments made in the Executive Department. The framers did not need to extend the prohibition to appointments in the Judiciary, because their establishment of the JBC and their subjecting the nomination and screening of candidates for judicial positions to the unhurried and deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the Judiciary. If midnight appointments in the mold of Aytona were made in haste and with irregularities, or made by an outgoing Chief Executive in the last days of his administration out of a desire to subvert the policies of the incoming President or for partisanship, the appointments to the Judiciary made after the establishment of the JBC would not be suffering from such defects because of the JBC’s prior processing of candidates. Indeed, it is axiomatic in statutory construction that the ascertainment of the purpose of the enactment is a step in the process of ascertaining the intent or meaning of the enactment, because the reason for the enactment must necessarily shed considerable light on “the law of the statute,” i.e., the intent; hence, the enactment should be construed with reference to its intended scope and purpose, and the court should seek to carry out this purpose rather than to defeat it.

Also, the intervention of the JBC eliminates the danger that appointments to the Judiciary can be made for the purpose of buying votes in a coming presidential election, or of satisfying partisan considerations. The experience from the time of the establishment of the JBC shows that even candidates for judicial positions at any level backed by people influential with the President could not always be assured of being recommended for the consideration of the President, because they first had to undergo the vetting of the JBC and pass muster there.  Indeed, the creation of the JBC was precisely intended to de-politicize the Judiciary by doing away with the intervention of the Commission on Appointments. This insulating process was absent from the Aytona midnight appointment.

Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC itself when it met on March 9, 1998 to discuss the question raised by some sectors about the “constitutionality of xxx appointments” to the Court of Appeals in light of the forthcoming presidential elections. He assured that “on the basis of the (Constitutional) Commission’s records, the election ban had no application to appointments to the Court of Appeals.” This confirmation was accepted by the JBC, which then submitted to the President for consideration the nominations for the eight vacancies in the Court of Appeals.

The fault of Valenzuela was that it accorded no weight and due consideration to the confirmation of Justice Regalado. Valenzuela was weak, because it relied on interpretation to determine the intent of the framers rather than on the deliberations of the Constitutional Commission. Much of the unfounded doubt about the President’s power to appoint during the period of prohibition in Section 15, Article VII could have been dispelled since its promulgation on November 9, 1998, had Valenzuela properly acknowledged and relied on the confirmation of a distinguished member of the Constitutional Commission like Justice Regalado.

Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16) concern the appointing powers of the President.

Section 14 speaks of the power of the succeeding President to revoke appointments made by an Acting President, and evidently refers only to appointments in the Executive Department. It has no application to appointments in the Judiciary, because temporary or acting appointments can only undermine the independence of the Judiciary due to their being revocable at will. The letter and spirit of the Constitution safeguard that independence. Also, there is no law in the books that authorizes the revocation of appointments in the Judiciary. Prior to their mandatory retirement or resignation, judges of the first and second level courts and the Justices of the third level courts may only be removed for cause, but the Members of the Supreme Court may be removed only by impeachment.

Section 16 covers only the presidential appointments that require confirmation by the Commission on Appointments. Thereby, the Constitutional Commission restored the requirement of confirmation by the Commission on Appointments after the requirement was removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the restored requirement did not include appointments to the Judiciary.

Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule that every part of the statute must be interpreted with reference to the context, i.e. that every part must be considered together with the other parts, and kept subservient to the general intent of the whole enactment. It is absurd to assume that the framers deliberately situated Section 15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds of presidential appointments. If that was their intention in respect of appointments to the Judiciary, the framers, if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely within Section 4 (1) thereof.

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.

Sixth. The argument has been raised to the effect that there will be no need for the incumbent President to appoint during the prohibition period the successor of Chief Justice Puno within the context of Section 4 (1), Article VIII, because anyway there will still be about 45 days of the 90 days mandated in Section 4(1), Article VIII remaining.

The argument is flawed, because it is focused only on the coming vacancy occurring from Chief Justice Puno’s retirement by May 17, 2010. It ignores the need to apply Section 4(1) to every situation of a vacancy in the Supreme Court.

The argument also rests on the fallacious assumption that there will still be time remaining in the 90-day period under Section 4(1), Article VIII. The fallacy is easily demonstrable, as the OSG has shown in its comment.

Section 4 (3), Article VII requires the regular elections to be held on the second Monday of May, letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the regular presidential elections are held on May 8, the period of the prohibition is 115 days. If such elections are held on May 14, the period of the prohibition is 109 days. Either period of the prohibition is longer than the full mandatory 90-day period to fill the vacancy in the Supreme Court. The result is that there are at least 19 occasions (i.e., the difference between the shortest possible period of the ban of 109 days and the 90-day mandatory period for appointments) in which the outgoing President would be in no position to comply with the constitutional duty to fill up a vacancy in the Supreme Court. It is safe to assume that the framers of the Constitution could not have intended such an absurdity.  In fact, in their deliberations on the mandatory period for the appointment of Supreme Court Justices under Section 4 (1), Article VIII, the framers neither discussed, nor mentioned, nor referred to the ban against midnight appointments under Section 15, Article VII, or its effects on the 90-day period, or vice versa. They did not need to, because they never intended Section 15, Article VII to apply to a vacancy in the Supreme Court, or in any of the lower courts.

Seventh. As a matter of fact, in an extreme case,  we can even raise a doubt on whether a JBC list is necessary at all for the President – any President – to appoint a Chief Justice if the appointee is to come from the ranks of the sitting justices of the Supreme Court.

Sec. 9, Article VIII says:

xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for any vacancy. Such appointments need no confirmation.

xxx

The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a non-member of the Court aspiring to become one.  It speaks of candidates for the Supreme Court, not of those who are already members or sitting justices of the Court, all of whom have previously been vetted by the JBC.

Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief Justice?

The question is not squarely before us at the moment, but it should lend itself to a deeper analysis if and when circumstances permit. It should be a good issue for the proposed Constitutional Convention to consider in the light of Senate President Juan Ponce Enrile’s statement that the President can appoint the Chief Justice from among the sitting justices of the Court even without a JBC list.

II

The Judiciary Act of 1948

The posture has been taken that no urgency exists for the President to appoint the successor of Chief Justice Puno, considering that the Judiciary Act of 1948 can still address the situation of having the next President appoint the successor.

Section 12 of the Judiciary Act of 1948 states:

Section 12. Vacancy in Office of Chief Justice. — In case of a vacancy in the office of Chief Justice of the Supreme Court or of his inability to perform the duties and powers of his office, they shall devolve upon the Associate Justice who is first in precedence, until such disability is removed, or another Chief Justice is appointed and duly qualified. This provision shall apply to every Associate Justice who succeeds to the office of Chief Justice.

The provision calls for an Acting Chief Justice in the event of a vacancy in the office of the Chief Justice, or in the event that the Chief Justice is unable to perform his duties and powers. In either of such circumstances, the duties and powers of the office of the Chief Justice shall devolve upon the Associate Justice who is first in precedence until a new Chief Justice is appointed or until the disability is removed.

Notwithstanding that there is no pressing need to dwell on this peripheral matter after the Court has hereby resolved the question of consequence, we do not find it amiss to confront the matter now.

We cannot agree with the posture.

A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is composed of a Chief Justice and 14 Associate Justices, who all shall be appointed by the President from a list of at least three nominees prepared by the JBC for every vacancy, which appointments require no confirmation by the Commission on Appointments. With reference to the Chief Justice, he or she is appointed by the President as Chief Justice, and the appointment is never in an acting capacity. The express reference to a Chief Justice abhors the idea that the framers contemplated an Acting Chief Justice to head the membership of the Supreme Court. Otherwise, they would have simply written so in the Constitution. Consequently, to rely on Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to appoint the next Chief Justice soonest is to defy the plain intent of the Constitution.

For sure, the framers intended the position of Chief Justice to be permanent, not one to be occupied in an acting or temporary capacity. In relation to the scheme of things under the present Constitution, Section 12 of the Judiciary Act of 1948 only responds to a rare situation in which the new Chief Justice is not yet appointed, or in which the incumbent Chief Justice is unable to perform the duties and powers of the office. It ought to be remembered, however, that it was enacted because the Chief Justice appointed under the 1935 Constitution was subject to the confirmation of the Commission on Appointments, and the confirmation process might take longer than expected.

The appointment of the next Chief Justice by the incumbent President is preferable to having the Associate Justice who is first in precedence take over. Under the Constitution, the heads of the Legislative and Executive Departments are popularly elected, and whoever are elected and proclaimed at once become the leaders of their respective Departments. However, the lack of any appointed occupant of the office of Chief Justice harms the independence of the Judiciary, because the Chief Justice is the head of the entire Judiciary. The Chief Justice performs functions absolutely significant to the life of the nation. With the entire Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no obstacle to the appointment of the next Chief Justice, aside from its being mandatory for the incumbent President to make within the 90-day period from May 17, 2010, there is no justification to insist that the successor of Chief Justice Puno be appointed by the next President.

Historically, under the present Constitution, there has been no wide gap between the retirement and the resignation of an incumbent Chief Justice, on one hand, and the appointment to and assumption of office of his successor, on the other hand. As summarized in the comment of the OSG, the chronology of succession is as follows:

1.     When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice Pedro Yap was appointed on the same day;

2.     When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan was appointed on the same day;

3.     When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres Narvasa was appointed the following day, December 8, 1991;

4.     When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario Davide, Jr. was sworn into office the following early morning of November 30, 1998;

5.     When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio Panganiban was appointed the next day, December 20, 2005; and

6.     When Chief Justice Panganiban retired on December 6, 2006, Chief Justice Reynato S. Puno took his oath as Chief Justice at midnight of December 6, 2006.

III

Writ of mandamus does not lie against the JBC

May the JBC be compelled to submit the list of nominees to the President?

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. 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.

For mandamus to 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.

Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least three nominees to the President for every vacancy in the Judiciary:

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.

However, 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.

The duty of the JBC to submit a list of nominees before the start of the President’s 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 duty to submit to the President the list of nominees for every vacancy in the Judiciary, because in order to constitute unlawful neglect of duty, there must be an unjustified delay in performing that duty. For mandamus to lie against the JBC, therefore, there should be an unexplained delay on its part in recommending nominees to the Judiciary, that is, in submitting the list to the President.

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.

Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a writ of mandamus against the JBC. The actions for that purpose are premature, because it is clear that the JBC still has until May 17, 2010, at the latest, within which to submit the list of nominees to the President to fill the vacancy created by the compulsory retirement of Chief Justice Puno.

IV

Writ of prohibition does not lie against the JBC

In light of the foregoing disquisitions, the conclusion is ineluctable that only the President can appoint the Chief Justice. Hence, Soriano’s petition for prohibition in G.R. No. 191032, which proposes to prevent the JBC from intervening in the process of nominating the successor of Chief Justice Puno, lacks merit.

On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of merit. The challenge mounted against the composition of the JBC based on the allegedly unconstitutional allocation of a vote each to the ex officio members from the Senate and the House of Representatives, thereby prejudicing the chances of some candidates for nomination by raising the minimum number of votes required in accordance with the rules of the JBC, is not based on the petitioners’ actual interest, because they have not alleged in their petition that they were nominated to the JBC to fill some vacancies in the Judiciary. Thus, the petitioners lack locus standi on that issue.

WHEREFORE, the Court:

1.     Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149, and the petition for mandamus in G.R. No. 191057 for being premature;

2.     Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of merit; and

3.     Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council:

(a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created by the compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010;

(b) To prepare the short list of nominees for the position of Chief Justice;

(c) To submit to the incumbent President the short list of nominees for the position of Chief Justice on or before May 17, 2010; and

(d) To continue its  proceedings  for the  nomination of candidates to fill other vacancies in the Judiciary and submit to the President the short list of nominees corresponding thereto in accordance with this decision.

SO ORDERED.

LUCAS P. BERSAMIN

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

ANTONIO T. CARPIO                        RENATO C. CORONA

Associate Justice                                     Associate Justice

CONCHITA CARPIO MORALES       PRESBITERO J. VELASCO, JR.

Associate Justice                                         Associate Justice

ANTONIO EDUARDO B. NACHURA    TERESITA J. LEONARDO-DE CASTRO

Associate Justice                                                  Associate Justice

ARTURO D. BRION                         DIOSDADO M. PERALTA

Associate Justice                                      Associate Justice

MARIANO C. DEL CASTILLO                    ROBERTO A. ABAD

Associate Justice                                       Associate Justice

MARTIN S. VILLARAMA, JR.           JOSE PORTUGAL PEREZ

Associate Justice                                  Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO

Chief Justice

CONCURRING OPINION

ABAD, J.:

Chief Justice Reynato S. Puno will retire on May 17, 2010.  Article VIII, Section 9 of 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 resolution 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.

Ordinarily, the JBC would already be holding public interviews of candidates to the office to be followed by a deliberation and the eventual submission of a shortlist of nominees to the President.  The Constitution provides that any vacancy in the Supreme Court “shall be filled within ninety days” from its occurrence. Since the position of Chief Justice will be vacant on May 17, 2010 when Chief Justice Puno shall have retired, the President has to fill up the vacancy during the period May 17 to August 15, 2010.

But by some unforeseen happenstance, that vacancy (May 18) will occur during the period of the midnight appointments ban (March 10 to June 30), a ban intended to prevent an outgoing president from buying votes using such appointments or robbing the incoming president of the opportunity to fill up important positions with people he will be working with.  Article VII, Section 15, of the Constitution prohibits the outgoing President from making appointments “two months immediately before the next presidential elections and up to the end of his term,” except temporary appointments in the interest of public service or public safety. The midnight appointments ban this year is in force from March 10 (two months before the elections) to June 30 (the end of the incumbent President’s term), a period of 112 days.

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 Court’s adjudication; and

2.       Whether or not the Constitutional ban on midnight appointments applies to the judiciary.

Discussion

One. Invoking the fundamental rule that judicial power is the duty of the courts of justice to settle “actual controversies involving rights which are legally demandable and enforceable,” the National Union of People’s Lawyers (NUPL) claims that no actual controversy exists in this case as to warrant judicial determination of the issue of whether or not the Constitutional ban on midnight appointment applies to the judiciary since the JBC has not as yet prepared a final list of its nominees to current vacancies in the courts.  BAYAN, COURAGE, KADAMAY, LFS, NUSTP, CEGP, SCMP, and BAYAN claim that what the petitioners seek is a mere advisory opinion from the Court, something that it has no power to give.

The Constitution provides that judicial power is the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable. The court will not act on an action for damages for a slap on the plaintiff’s face if the defendant is still to deliver that slap.  The law must have established a right which has in fact been violated.

Here, the Constitution imposes on the JBC the duty to recommend to the President those whom he can appoint to the judiciary when a vacancy occurs. In the case of a vacancy in the Supreme Court, it is implicit that the JBC must submit a list of at least three nominees to the President on time to enable him to fulfill his duty to fill up the vacancy within 90 days after it occurs. Those who have an interest in the fulfillment of this duty has the right to insist that it be done.

But the JBC appears reluctant or unwilling to perform its above duty in the case of the forthcoming May 17, 2010 vacancy in the office of the Chief Justice.  It expressed a desire to determine, initially, from views submitted to it by others and, later, from what the Court might provide it by way of guidance, whether it can submit its list of nominees to the incumbent President during the ban on midnight appointments that sets in on March 10.  Indeed, the JBC said in its resolution of January 18, 2010 that, while it would start the selection process, it was yet to determine when and to whom to submit its shortlist of nominees.  It saw an apparent conflict between the provisions of Section 4(1) of Article VIII (the ban on midnight appointments) and Section 15 of Article VII (the need to fill up the vacancy within 90 days of its occurrence) of the 1987 Constitution.

Eventually, after taking some steps in the selection process, the JBC held the process in abeyance, unable to decide as yet when and to whom it will submit its list of nominees for the position that Chief Justice Puno will vacate on May 17, 2010.  Under the circumstances, the controversy is already ripe for adjudication for, assuming that the ban on midnight appointment does not apply to the judiciary as the petitioners would have it, then the JBC’s suspension of its selection process would constitute a violation of its duty under the Constitution to carry on with such process until it is able to submit the desired list to the incumbent President.  If my subdivision neighbor begins constructing a shed in his yard and tells me that he has ordered 20 pigs to raise there, I will not wait till the pigs arrive and defecate before I bring an action to abate a nuisance.

As mandated by the Constitution, the incumbent President should be able to fill up the vacancy within 90 days of its occurrence. This presupposes that the incumbent President should have the list on or before May 17, the day the vacancy occurs, so she can comply with her duty under the Constitution to make the appointment within the 90-day period provided by it.  Of course, the circumstances is such that the period for appointing the Chief Justice’s replacement will span the tenure of the incumbent President (for 44 days) and her successor (for 46 days), but it is the incumbent’s call whether to exercise the power or pass it on.

Again, assuming as correct petitioners’ view that the ban on midnight appointments does not apply to the judiciary, the JBC’s suspension of its selection process places it in default, given its above duty in regard to the submission of its list of nominees to the President within a time constraint.  Under the same assumption, moreover, the petitioner citizens and members of the bar would have a demandable right or interest in having the JBC proceed with its 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.

In its Resolution of January 18, 2010, the JBC confesses uncertainty regarding when and to whom to submit its list of nominees for the May 17, 2010 vacancy in the office of Chief Justice in view of the apparently conflicting provisions of the Constitution.  Further, in its comment in this case, the JBC declared that it “will be guided by [the Court’s] decision in these consolidated Petitions and Administrative Matter.”  Consequently, as an incident of its Constitutional duty to supervise the JBC, the Court can, to insure JBC’s faithful compliance with the Constitution, resolve the issue of whether or not the ban on midnight appointments applies to the judiciary.

Two.  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,” 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 President’s power of appointment, it is this Court’s 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 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.

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.

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

This restriction on the President’s appointing power is not a small matter.

First.  The JBC from whose list of nominees the President will make his appointment is under the supervision of the Supreme Court itself.  Indeed, it is headed by the Chief Justice as its presiding officer.  The JBC is not a subordinate agency of the Executive Department; the President has neither control nor supervision over it.

Second.  The JBC makes its own vetting rules and procedures.  The Constitution of course provides for the qualifications of members of the judiciary but this has not prevented the JBC from establishing grounds for disqualifying candidates, such as the pendency of administrative or criminal cases against them.

Third.  The JBC announces any vacancy in the judiciary in newspapers of large circulations.  Secret recruitment and trading for votes in the coming elections is out.

Fourth.  Anyone who has the basic qualifications can apply for a vacancy or be nominated to it.  Thus, the opportunity to be recommended by the JBC for appointment is open or otherwise unrestricted.  Political connection is not a consideration that the JBC entertains in short listing its nominees.

Fifth.  The JBC invites the public to comment on or submit opposition to the nomination of candidates to a vacancy.  And it holds public hearings in which each candidate is queried about his qualifications, affiliations, and other personal circumstances.

Sixth.  The names in the list submitted by the JBC to the President are not negotiable.  On July 24, 2009 the Executive Secretary returned to JBC its list of six nominees for two vacancies in the Court, requesting additional names that the incumbent President can choose from.  Obviously, the President was unhappy with the names on the list.  But the JBC declined the request, the pertinent portion of which reads:

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 1987 Constitution designed to depoliticize appointments in the Judiciary and promote its independence.  This discretion given to the JBC is the lynchpin of its autonomy and it cannot be compromised in the tiniest degree without impairing the delicate check and balance in the appointment of members of the Judiciary installed in our Constitution.  The JBC, voting unanimously, cannot therefore accede to your request in light of the imperatives of the Constitution.

Thus, the incumbent President was forced to choose from the few names on the list that she had.

In reality, a President’s 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 JBC’s actions.

Further, 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. Panganiban and Reynato S. Puno voted against positions taken by the administration of the incumbent President who appointed them both to their position.  These Chief Justices like those before them were first choices of the JBC before they were those of the Presidents concerned.

I thus reiterate my concurrence with the main decision.

ROBERTO A. ABAD

Associate Justice

D I S S E N T I N G   O P I N I O N

CARPIO MORALES, J.:

“Although the Chief Justice is primus inter pares, he cannot legally decide a case on his own because of the Court’s nature as a collegial body.  Neither can the Chief Justice, by himself, overturn the decision of the Court, whether of a division or the en banc.”

— Associate Justice Renato C. Corona in

Complaint of Mr. Aurelio Indencia Arrienda

against Justice Puno, 499 Phil. 1, 14 (2005)

Primus Inter pares.  First among equals.  The Latin maxim indicates that a person is the most senior of a group of people sharing the same rank or office.  The phrase has been used to describe the status, condition or role of the prime minister in most parliamentary nations, the high-ranking prelate in several religious orders, and the chief justice in many supreme courts around the world.

The inclination to focus on the inter pares without due emphasis on the primus/prima has spawned contemporary discourse that revives the original tug-of-war between domination and parity, which impasse the conceived maxim precisely intended to resolve.

In the present case, several arguments attempt to depict a mirage of doomsday scenarios arising from the impending vacancy of the primus in the Court as a springboard for their plea to avert a supposed undermining of the independence of the judiciary.  In reality, the essential question boils down to the limitation on the appointing power of the President.

The ponencia of Justice Bersamin holds that the incumbent President can appoint the next Chief Justice upon the retirement of Chief Justice Reynato S. Puno on May 17, 2010 since the prohibition during election period does not extend to appointments in the judiciary, thereby reversing In re appointments of Hon. Valenzuela & Hon. Vallarta.

The ponencia additionally holds that the Judicial and Bar Council (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.

I DISSENT.

Constitutional draftsmanship style is the weakest aid in arriving at a constitutional construction

The first ratiocination adverts to the “organization and arrangement of the provisions of the Constitution” that was, as the ponencia declares, purposely made by the framers of the Constitution to “reflect their intention and manifest their vision” of the charter’s contents.

It is unfortunate that the ponencia chiefly relies on the trivialities of draftsmanship style in arriving at a constitutional construction.  The petitioner in Anak Mindanao Party-List Group v. The Executive Secretary raised a similar argument, but the Court held:

AMIN goes on to proffer the concept of “ordering the law” which, so it alleges, can be said of the Constitution’s distinct treatment of these three areas, as reflected in separate provisions in different parts of the Constitution.  It argues that the Constitution did not intend an over-arching concept of agrarian reform to encompass the two other areas, and that how the law is ordered in a certain way should not be undermined by mere executive orders in the guise of administrative efficiency.

The Court is not persuaded.

The interplay of various areas of reform in the promotion of social justice is not something implausible or unlikely.  Their interlocking nature cuts across labels and works against a rigid pigeonholing of executive tasks among the members of the President’s official family.  Notably, the Constitution inhibited from identifying and compartmentalizing the composition of the Cabinet.  In vesting executive power in one person rather than in a plural executive, the evident intention was to invest the power holder with energy.

AMIN takes premium on the severed treatment of these reform areas in marked provisions of the ConstitutionIt is a precept, however, that inferences drawn from title, chapter or section headings are entitled to very little weight.  And so must reliance on sub-headings, or the lack thereof, to support a strained deduction be given the weight of helium.

Secondary aids may be consulted to remove, not to create doubt.  AMIN’s thesis unsettles, more than settles the order of things in construing the Constitution.  Its interpretation fails to clearly establish that the so-called “ordering” or arrangement of provisions in the Constitution was consciously adopted to imply a signification in terms of government hierarchy from where a constitutional mandate can per se be derived or asserted.  It fails to demonstrate that the “ordering” or layout was not simply a matter of style in constitutional drafting but one of intention in government structuring. With its inherent ambiguity, the proposed interpretation cannot be made a basis for declaring a law or governmental act unconstitutional. (emphasis and underscoring supplied)

Concededly, the allocation of three Articles in the Constitution devoted to the respective dynamics of the three Departments was deliberately adopted by the framers to allocate the vast powers of government among the three Departments in recognition of the principle of separation of powers.

The equation, however, does not end there.  Such kind of formulation detaches itself from the concomitant system of checks and balances.  Section sequencing alone of Sections 14, 15 and 16 of Article VII, as explained in the fourth ratiocination, does not suffice to signify functional structuring.

That the power of judicial appointment was lodged in the President is a recognized measure of limitation on the power of the judiciary, which measure, however, is counterbalanced by the election ban due to the need to insulate the judiciary from the political climate of presidential elections.  To abandon this interplay of checks and balances on the mere inference that the establishment of the JBC could de-politicize the process of judicial appointments lacks constitutional mooring.

The establishment of the JBC is not sufficient to curtail the evils of midnight appointments in the judiciary

The constitutional prohibition in Section 15 found its roots in the case of Aytona v. Castillo, where among the “midnight” or “last minute” appointments voided to abort the abuse of presidential prerogatives or partisan efforts to fill vacant positions were one in the Supreme Court and two in the Court of Appeals.

Heeding Aytona’s admonition, the Constitutional Commission (ConCom) saw it fit to provide for a comprehensive ban on midnight appointments, finding that the establishment of the JBC is not enough to safeguard or insulate judicial appointments from politicization.  The ConCom deliberations reveal:

MR. GUINGONA:    Madam President.

THE PRESIDENT:    Commissioner Guingona is recognized.

MR. GUINGONA:    Would the distinguished proponent accept an amendment to his amendment to limit this prohibition to members of collegiate courts? The judges of the lower courts perhaps would not have the same category or the same standing as the others mentioned here.

MR. DAVIDE:           Pursuant to the post amendment, we already included here government-owned or controlled corporations or their subsidiaries which are not even very sensitive positions. So with more reason that the prohibition should apply to appointments in these bodies.

THE PRESIDENT:    Does the Committee accept?

FR. BERNAS:            What is common among these people — Ministers, Deputy Ministers, heads of bureaus or offices — is that they are under the control of the President.

MR. GUINGONA:   That is correct.

FR. BERNAS:            Whereas, the other offices the Commissioner mentioned are independent offices.

MR. DAVIDE:           The idea of the proposal is that about the end of the term of the President, he may prolong his rule indirectly by appointing people to these sensitive positions, like the commissions, the Ombudsman, the JUDICIARY, so he could perpetuate himself in power even beyond his term of office; therefore foreclosing the right of his successor to make appointments to these positions. We should realize that the term of the President is six years and under what we had voted on, there is no reelection for him. Yet he can continue to rule the country through appointments made about the end of his term to these sensitive positions.

FR. BERNAS:            At any rate, there are other checks as far as the appointment of those officers is concerned.

MR. DAVIDE:           Only insofar as the Commission on Appointments is concerned for offices which would require consent, and the Judicial Bar Council insofar as the judiciary is concerned.

FR. BERNAS:            We leave the matter to the body for a vote. (capitalization and emphasis supplied)

The clear intent of the framers is thus for the ban on midnight appointments to apply to the judiciary.  The succeeding interpellations suggest no departure from this intent.

For almost half a century, the seeds of Aytona, as nurtured and broadened by the Constitution, have grown into an established doctrine that has weathered legal storms like Valenzuela.

The second ratiocination in the ponencia could thus not remove an added constitutional safeguard by pretending to have examined and concluded that the establishment of the JBC had eliminated all encompassing forms of political maneuverings during elections.  Otherwise, reading into the Constitution such conclusion so crucial to the scheme of checks and balances, which is neither written nor tackled, undermines the noticeable silence or restraint exercised by the framers themselves from making a definitive analysis.

To illustrate, the instance given in the fifth ratiocination that having the new President appoint the next Chief Justice cannot ensure judicial independence because the appointee can also become beholden to the appointing authority bears an inconsistent stance.  It does not admit or recognize that the mechanism of removal by impeachment eliminates the evils of political indebtedness.  In any event, that level of reasoning overlooks the risk of compromising judicial independence when the outgoing President faces the Court in the charges that may be subsequently filed against her/him, and when the appointing President is up for re-election in the peculiar situation contemplated by Section 4, Article VII of the Constitution.

All rules of statutory construction revolt against the interpretation arrived at by the ponencia

It is simplistic and unreliable for the ponencia to contend that had the framers intended to extend the ban in Article VII to appointments in the judiciary, they would have easily and surely written so in Article VIII, for it backlashes the question that had the framers intended to exclude judicial appointments in Article VIII from the prohibition in Article VII, they would have easily and surely written so in the excepting proviso in Article VII.

Taking into account how the framers painstakingly rummaged through various sections of the Constitution and came up with only one exception with the need to specify the executive department, it insults the collective intelligence and diligence of the ConCom to postulate that it intended to exclude the judiciary but missed out on that one.

To hold that the ban on midnight appointments applies only to executive positions, and not to vacancies in the judiciary and independent constitutional bodies, is to make the prohibition practically useless.  It bears noting that Section 15, Article VII of the Constitution already allows the President, by way of exception, to make temporary appointments in the Executive Department during the prohibited period.  Under this view, there is virtually no restriction on the President’s power of appointment during the prohibited period.

The general rule is clear since the prohibition applies to ALL kinds of midnight appointments.  The Constitution made no distinction.  Ubi lex non distinguit nec nos distinguere debemos.

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. (italics in the original; underscoring supplied)

The proclivity to innovate legal concepts is enticing.  Lest the basic rule be forgotten, it helps to once more recite that when the law is clear, it is not susceptible to interpretation and must be applied regardless of who may be affected, even if the law may be harsh or onerous.

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 Regalado’s opinion, the Court’s 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 accuracy’s sake, we might as well reconvene all ConCom members and put the matter to a vote among them.

Providentially, jurisprudence is replete with guiding principles to ascertain the true meaning of the Constitution when the provisions as written appear unclear and the proceedings as recorded provide little help:

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention “are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face.”  The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers’ understanding thereof. (underscoring supplied)

The clear import of Section 15 of Article VII is readily apparent.  The people may not be of the same caliber as Justice Regalado, but they simply could not read into Section 15 something that is not there.  Casus omissus pro omisso habendus est.

What complicates the ponencia is its great preoccupation with Section 15 of Article VII, particularly its fixation with sentences or phrases that are neither written nor referred to therein.  Verba legis non est recedendum, index animi sermo est.  There should be no departure from the words of the statute, for speech is the index of intention.

IN FINE, all rules of statutory construction virtually revolt against the interpretation arrived at by the ponencia.

The 90-day period to fill a vacancy in the Supreme Court is suspended during the ban on midnight appointments

Although practically there is no constitutional crisis or conflict involved upon the retirement of the incumbent Chief Justice, the ponencia illustrates the inapplicability of the 90-day mandate to every situation of vacancy in the Supreme Court (i.e., the 19-day vacuum articulated in the sixth ratiocination) if only to buttress its thesis that judicial appointment is an exception to the midnight appointments ban.  The contemplated situation, however, supports the idea that the 90-day period is suspended during the effectivity of the ban.

I submit that the more important and less complicated question is whether the 90-day period in Section 4(1) of Article VIII runs during the period of prohibition in Section 15 of Article VII.

In response to that question, the ponencia declares that it is the President’s “imperative duty to make an appointment of a Member of the Supreme Court within 90 days from theoccurrence of the vacancy [and that t]he failure by the President to do so will be a clear disobedience to the Constitution.”

The ponencia quotes certain records of the ConCom deliberations which, however, only support the view that the number of Justices should “not be reduced for any appreciable length of time” and it is a “mandate to the executive to fill the vacancy”.  Notably, there is no citation of any debate on how the framers reckoned or determined an appreciable length of time of 90 days, in which case a delay of one day could already bring about the evils it purports to avoid and spell a culpable violation of the Constitution.  On the contrary, that the addition of one month to the original proposal of 60 days was approved without controversy ineluctably shows that the intent was not to strictly impose an inflexible timeframe.

Respecting the rationale for suspending the 90-day period, in cases where there is physical or legal impossibility of compliance with the duty to fill the vacancy within the said period, the fulfillment of the obligation is released because the law cannot exact compliance with what is impossible.

In the present case, there can only arise a legal impossibility when the JBC list is submitted or the vacancy occurred during the appointments ban and the 90-day period would expire before the end of the appointments ban, in which case the fresh 90-day period should start to run at noon of June 30.  This was the factual antecedent respecting the trial court judges involved in Valenzuela.  There also arises a legal impossibility when the list is submitted or the vacancy occurred prior to the ban and no appointment was made before the ban starts, 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 President’s 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.

This view differs from Valenzuela in that it does not implement Section 15 of Article VII so as to breach Section 4(1) of Article VIII.  Instead of disregarding the 90-day period in the observance of the ban on midnight appointments, the more logical reconciliation of the two subject provisions is to consider the ban as having the effect of suspending the duty to make the appointment within 90 days from the occurrence of the vacancy.  Otherwise stated, since there is a ban, then there is no duty to appoint as the power to appoint does not even exist.  Accordingly, the 90-day period is suspended once the ban sets in and begins or continues to run only upon the expiration of the ban.

One situation which could result in physical impossibility is the inability of the JBC to constitute a quorum for some reasons beyond their control, as that depicted by Justice Arturo Brion in his Separate Opinion, in which case the 90-day period could lapse without fulfilling the constitutional obligation.

Another such circumstance which could frustrate the ponencia’s depiction of the inflexibility of the period is a “no-takers” situation where, for some reason, there are no willing qualified nominees to become a Member of the Court. Some might find this possibility remote, but then again, the situation at hand or the “absurdity” of a 19-day overlapping vacuum may have also been perceived to be rare.

The seventh ratiocination is admittedly a non-issue.  Suffice it to state that the Constitution is clear that the appointment must come “from a list x x x prepared by the Judicial and Bar Council.”

The Supreme Court can function effectively during the midnight appointments ban without an appointed Chief Justice

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.

Sustaining the view means that in case the President appoints as Chief Justice a sitting member of the Court, from a JBC list which includes, for instance, incumbent justices and “outsiders,” the JBC must forthwith submit a list of nominees for the post left vacant by the sitting member-now new Chief Justice.  This thus calls for the JBC, in anticipation, to also commence and conclude another nomination process to fill the vacancy, and simultaneously submit a list of nominees for such vacancy, together with the list of nominees for the position of Chief Justice. If the President appoints an “outsider” like Sandiganbayan Justice Edilberto Sandoval as Chief Justice, however, the JBC’s toil and time in the second nomination process are put to waste.

It is ironic 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.

As a member of the Court, I strongly take exception to the ponencia’s 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 Court’s 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 Court’s 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.

IN LIGHT OF THE FOREGOING, I vote to hold, for the guidance of the Judicial and Bar Council, that the incumbent President is constitutionally proscribed from appointing the successor of Chief Justice Reynato S. Puno upon his retirement on May 17, 2010 until the ban ends at 12:00 noon of June 30, 2010.

CONCHITA CARPIO MORALES

Associate Justice

SEPARATE OPINION

NACHURA, J.:

“No amount of exigency can make this Court exercise a power where it is not proper.”

I am deeply impressed by the very well written ponencia of Justice Lucas P. Bersamin. However, I am unable to concur in all of his conclusions.  Instead, I vote to dismiss all the petitions because they have utterly failed to present a justiciable controversy.

The Antecedents

In recent weeks, two potential scenarios have gripped the public mind. The first is the specter of the failure of our first ever automated election which has evoked numerous doomsday predictions.  The second is the possibility of the appointment by President Gloria Macapagal Arroyo of the Chief Justice of the Supreme Court—after the compulsory retirement of incumbent Chief Justice Reynato S. Puno on May 17, 2010.  This has generated frenzied debates in media, in various lawyers’ assemblies, in the academe, and in coffee shops.  It has even spawned a number of rallies and demonstrations by civil society groups and by self-styled constitutional experts.

It does not matter that these two situations are merely possibilities, that they are conjectural and speculative at this moment in time.  They have, nonetheless, captured the public imagination, and have ushered an open season for unfettered discussion and for dire prognostication.

Not unexpectedly, the controversy posed by the second scenario— involving concerns closest to home—has arrived in this Court through various petitions and interventions.

The core issue is whether the sitting President of the Philippines, Gloria Macapagal Arroyo, can validly appoint the Chief Justice of the Supreme Court when the incumbent Chief Justice, Reynato S. Puno, compulsorily retires on May 17, 2010, in light of two apparently conflicting provisions of the Constitution.

Article VII, Section 15, provides a constitutional limitation on the President’s power of appointment, viz.:

Sec. 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

On the other hand, Article VIII, Section 4(1) contains an express mandate for the President to appoint the Members of the Supreme Court within ninety days from the occurrence of a vacancy, thus—

Sec. 4(1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or, in its discretion, in divisions of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.

in relation to Article VIII, Section 9, which states that—

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. Any vacancy shall be filled within ninety days from the occurrence thereof.

For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.

The perceived conflict was resolved in administrative matter, 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, respectively. Therein, the Court was confronted with the question of whether the appointments of the concerned RTC judges, issued within two months before the presidential election in 1998, were valid.  The Court answered that, in the given situation, Article VII, Section 15, has primacy over Article VIII, Section 4(1), because the former was “couched in stronger negative language.”  Accordingly, the appointments were nullified. However, Valenzuela’s applicability to the present controversy is challenged by most of herein petitioners.

The petitions were filed following certain acts of the Judicial and Bar Council (JBC) related to the constitutional procedure for the appointment of Supreme Court justices, specifically in the matter of the appointment of Chief Justice Puno’s successor.  On January 18, 2010, the JBC passed a Resolution which relevantly reads:

The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling up the position of Chief Justice to be vacated on May 17, 2010 upon the retirement of the incumbent Chief Justice Honorable Reynato S. Puno.

It will publish the opening of the position for applications or recommendations; deliberate on the list of candidates; publish the names of candidates; accept comments on or opposition to the applications; conduct public interviews of candidates; and prepare the shortlist of candidates.

As to the time to submit this shortlist to the proper appointing authority, in the light of the Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all views on the matter.

On January 20, 2010, the JBC formally announced the opening, for application or recommendation, of the position of Chief Justice of this Court, thus—

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.

In its February 8, 2010 meeting, the JBC decided to proceed with the process of announcing to the public the names of the candidates for the position. Included in the list of applicants are: (1) Brion, Arturo D.; (2) Carpio, Antonio T.; (3) Corona, Renato C.; (4) Carpio Morales, Conchita; (5) Leonardo-de Castro, Teresita J.; and (6) Sandoval, Edilberto G.

These developments, having already engendered near-hysterical debates, impelled a number of petitioners to file suit.  However, obviously hedging against the possibility that the cases would be disallowed on the ground of prematurity, petitioners came to Court using different procedural vehicles.

In G.R. No. 191002, petitioner Arturo de Castro entreats the Court to issue a writ of mandamus to compel the JBC to send the list of nominees for Chief Justice to the incumbent President when the position becomes vacant upon the retirement of Chief Justice Puno on May 17, 2010.

The Philippine Constitution Association (PHILCONSA) and John Peralta, petitioners in G.R. Nos. 191057 and 191149, respectively, plead for the same relief.

In G.R. No. 191032, Jaime Soriano seeks the issuance by the Court of a writ prohibiting the JBC from continuing with its proceedings, particularly the screening of applicants for Chief Justice, based on the hypothesis that the authority to appoint the Chief Justice pertains exclusively to the Supreme Court.  He posits that it is the Court that must commence its own internal proceeding to select the successor of Chief Justice Puno.

Amador Tolentino, Jr., in G.R. No. 191342, asks this Court to enjoin and restrain the JBC from submitting the list of nominees for judiciary positions, including that of Chief Justice, to the incumbent President during the period covered in Article VII, Section 15 of the Constitution.

In a cleverly crafted petition which he denominated an administrative matter, former Solicitor General Estelito P. Mendoza filed A.M. No. 10-2-5-SC, imploring this Court to rule, for the guidance of the JBC, whether the constitutional prohibition in Article VII, Section 15, applies to positions in the judiciary and whether the incumbent President may appoint the successor of Chief Justice Puno upon the latter’s retirement.

Notably, although the petitions sport different appellations (for mandamus, or prohibition, or even as an administrative matter), they (except the Soriano petition) share a common bottom line issue, i.e., a definitive ruling on whether, in light of the perceived conflict between Article VII, Section 15, and Article VIII, Section 4(1), the incumbent President can validly appoint a Chief Justice after Chief Justice Puno retires on May 17, 2010.

Thus, the Court consolidated the petitions and required the JBC and the Office of the Solicitor General (OSG) to file their respective comments.

Significantly, the JBC, in its February 25, 2010 Comment, stated:

11.       The next stage of the process which will be the public interview of the candidates, and the preparation of the shortlist of candidates have yet to be undertaken by the JBC as of this date, including the interview of the constitutional experts, as may be needed.

Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper appointing authority, in light of Section 4(1), Article VIII of the Constitution, which provides that vacancy in the Supreme Court shall be filled within ninety (90) days from the occurrence thereof, Section 15, Article VIII of the Constitution concerning the ban on Presidential appointments “two (2) months immediately before the next presidential elections and up to the end of his term” and Section 261(g), Article XXII of the Omnibus Election Code of the Philippines.

On the other hand, the OSG, in its Comment dated February 26, 2010, took the position that the incumbent President of the Philippines can appoint the successor of Chief Justice Puno when he retires on May 17, 2010, because the prohibition in Article VII, Section 15, of the Constitution does not apply to appointments in the Supreme Court.

Meanwhile, several motions for intervention with oppositions-in-intervention were received by the Court.

Oppositors-Intervenors Antonio Gregorio III, Peter Irving Corvera, Walden Bello, Loretta Ann Rosales, and National Union of Peoples’ Lawyers uniformly contend in their pleadings that the consolidated petitions should be dismissed outright, because of the absence of an actual case or controversy ripe for judicial adjudication and because of petitioners’ lack of legal standing to institute the cases.

Oppositor-Intervenor Mitchell John Boiser posits, among others, that the petitions for mandamus are premature because there is yet no final list of nominees and the position of Chief Justice is not yet vacant.

Oppositors-Intervenors Yolanda Quisumbing-Javellana, Belleza Alojado Demaisip, Teresita Gandionco-Oledan, Ma. Verena Kasilag-Villanueva, Marilyn Sta. Romana,  Leonila de Jesus, and Guinevere de Leon contend, among others, that the incumbent President is prohibited from making appointments within the period prescribed in Article VII, Section 15;  that the next President will still have ample time to appoint a Chief Justice when Chief Justice Puno retires on May 17, 2010 before the 90-day period for appointment mandated in Article VIII, Section 4(1) expires; and that in  the interim, the duties of the Chief Justice can be exercised by the most senior of the incumbent Supreme Court justices.

My Position

After careful perusal of the pleadings and painstaking study of the applicable law and jurisprudence, I earnestly believe that the consolidated petitions should be dismissed, because they do not raise an actual case or controversy ripe for judicial determination.

As an essential ingredient for the exercise of the power of judicial review, an actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims susceptible to judicial resolution. The controversy must be justiciable—definite and concrete—touching on the legal relations of parties having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on one hand, and a denial thereof, on the other; that is, the case must concern a real and not a merely theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. The rationale for this requirement is to prevent the courts through avoidance of premature adjudication from entangling themselves in abstract disagreements, and for us to be satisfied that the case does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.

Thus, justiciability requires (1) that there be an actual controversy between or among the parties to the dispute; (2) that the interests of the parties be adverse; (3) that the matter in controversy be capable of being adjudicated by judicial power; and (4) that the determination of the controversy will result in practical relief to the complainant.

By these standards, the consolidated petitions do not present a justiciable controversy because of the absence of clashing legal rights.  The JBC has merely started the selection process by accepting applications and nominations for the position of Chief Justice.  This is only the initial stage of the procedure for appointment of a Chief Justice.  By the JBC’s own admission, it has yet to undertake the public interview of the applicants; it has yet to prepare the shortlist and to decide whether it needs to interview constitutional experts.

Arturo de Castro and John Peralta justify the propriety of the filing of their respective petitions for certiorari and mandamus by a common thread: that the JBC has deferred its decision as to whom to submit the list of nominees. They are then asking the Court to compel the JBC to submit the list to the incumbent President.

De Castro’s and Peralta’s submission tends to mislead the Court. It is clear from the narrated facts that there is yet no list to submit. The JBC is still in the process of screening applicants for the position. Since there is no list to be submitted, there can be no deferment of its submission. De Castro and Peralta have not shown or even alleged that the JBC has refused or has been unlawfully neglecting to submit its list, if it is already in existence, to the incumbent President. Mandamus is proper only to compel the performance, when refused, of a ministerial duty. The mandamus petition therefore has no leg to stand on as it presents no actual case ripe for judicial determination.

PHILCONSA, for its part, contends that two applicants for the post, Justices Carpio and Carpio Morales, manifested their interest in their nomination on the condition that the same will be submitted to the next President. According to PHILCONSA, this fact “has created a dilemma/quandary to respondent JBC whether to exclude [from] or include [in the list] the names of said two Senior Justices.” It then prays for this Court to rule on the issue.

PHILCONSA, like de Castro and Peralta, is not completely truthful. From its comment, it appears that, as early as February 10, 2010, the JBC had already included the two justices, despite their conditional acceptance of their nominations, in the list of applicants for the post. There is no quandary to speak of.

To justify their petitions for prohibition, Jaime Soriano and Amador Tolentino, Jr. allege that the JBC has already started the screening process for Chief Justice. Thus, they claim that the Court can now resolve the constitutional question and issue the writ prohibiting the JBC from submitting the list of nominees to the incumbent President.

As earlier mentioned, absent a shortlist of nominees for Chief Justice prepared by the JBC, there is yet nothing that the Court can prohibit the JBC from submitting to the incumbent President. The JBC has not even intimated concretely that it will perform the act sought to be prohibited—submitting a list to the incumbent President. The JBC merely started the screening process. Let it be noted that a writ of prohibition is issued to command a respondent to desist from further proceeding in the action or matter specified. Likewise, without a shortlist, there is nothing that this Court can mandate the JBC to submit to the President.

As to the petition filed by Estelito Mendoza, while it is captioned as an administrative matter, the same is in the nature of a petition for declaratory relief. Mendoza pleads that this Court interpret two apparently conflicting provisions of the Constitution—Article VII, Section 15 and Article VIII, Section 4(1). Petitioner Mendoza specifically prays for such a ruling “for the guidance of the [JBC],” a relief evidently in the nature of a declaratory judgment.

Settled is the rule that petitions for declaratory relief are outside the jurisdiction of this Court. Moreover, the Court does not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging. While Mendoza and the other petitioners espouse worthy causes, they have presented before this Court issues which are still subject to unforeseen possibilities. In other words, the issues they raised are hypothetical and unripe for judicial determination.

At this point, several contingent events are still about to unfold. The JBC, after it has screened the applicants, may decide to submit the shortlist of nominees either before or after the retirement of Chief Justice Puno. If it decides to submit the list after May 17, 2010, it may opt to transmit said list of nominees to President Macapagal-Arroyo or to the next President. If the list is transmitted to her, the incumbent President may either appoint or not appoint the replacement of Chief Justice Puno. We cannot assume that the JBC will do one thing or the other. Neither can we truly predict what the incumbent President will do if such a shortlist is transmitted to her. For us to do so would be to engage in conjecture and to undertake a purely hypothetical exercise.

Thus, the situation calling for the application of either of the conflicting constitutional provisions will arise only when still other contingent events occur. What if the JBC does not finish the screening process during the subject period? What if the President does not make the appointment? Verily, these consolidated petitions involve “uncertain contingent future events that may not occur as anticipated, or indeed may not occur at all,” similar to the recently decided Lozano v. Nograles, which this Court dismissed through the pen of Chief Justice Puno. As no positive act has yet been committed by respondents, the Court must not intervene. Again, to borrow the words of Chief Justice Puno in Lozano, “judicial review is effective largely because it is not available simply at the behest of a partisan faction, but is exercised only to remedy a particular, concrete injury.”

Further, the Mendoza petition cannot be likened to the administrative matter in In Re Appointments of Hon. Valenzuela & Hon. Vallarta, over which the Court assumed jurisdiction. In that case, the President appointed judges within the constitutional ban and transmitted the appointments to the Chief Justice. Clearly, an actual controversy ripe for judicial determination existed in that case because a positive act had been performed by the President in violation of the Constitution. Here, as shown above, no positive act has been performed by either the JBC or the President to warrant judicial intervention.

To repeat for emphasis, before this Court steps in to wield its awesome power of deciding cases, there must first be an actual controversy ripe for judicial adjudication. Here, the allegations in all the petitions are conjectural or anticipatory. No actual controversy between real litigants exists. These consolidated petitions, in other words, are a “purely academic exercise.” Hence, any resolution that this Court might make would constitute an attempt at abstraction that can only lead to barren legal dialectics and sterile conclusions unrelated to actualities.

Moreover, the function of the courts is to determine controversies between litigants and not to give advisory opinions. Here, petitioners are asking this Court to render an advisory opinion on what the JBC and the President should do. To accede to it is tantamount to an incursion into the functions of the executive department. This will further inappropriately make the Court an adviser of the President. Chief Justice Enrique Fernando, in his concurring opinion in Director of Prisons v. Ang Cho Kio, specifically counseled against this undue portrayal by the Court of the alien role of adviser to the President, thus—

Moreover, I would assume that those of us entrusted with judicial responsibility could not be unaware that we may be laying ourselves open to the charge of presumptuousness. Considering that the exercise of judicial authority does not embrace the alien role of a presidential adviser, an indictment of officiousness may be hard to repel. It is indefinitely worse if the advice thus gratuitously offered is ignored or disregarded. The loss of judicial prestige may be incalculable. Thereafter, there may be less than full respect for court decisions. It would impair the confidence in its ability to live up to its trust not only on the part of immediate parties to the litigation but of the general public as well. Even if the teaching of decided cases both here and in the Philippines is not as clear therefore, there should be, to say the least, the utmost reluctance on the part of any court to arrogate for itself such a prerogative, the exercise of which is fraught with possibilities of such undesirable character.

The ponencia holds that “we need not await the occurrence of the vacancy by May 17, 2010 in order to have the principal issue be ripe for judicial determination.” That may very well be desirable. But still, there must be the palpable presence of an actual controversy because, again, as discussed above, this Court does not issue advisory opinions. The Court only adjudicates actual cases that present definite and concrete controversies touching on the legal relations of the parties having adverse legal interests.

The ponencia also sought refuge in the American cases of Buckley v. Valeo and Regional Rail Reorganization Act Cases to support its position that “the reasonable certainty of the occurrence of the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the Court has sufficient facts before it to enable it to intelligently adjudicate the issues.” The cited American cases only considered the issue of ripeness and did not confront the absence of an actual case or controversy. Further, in Buckley, the members of the Commission were already appointed under the statute being challenged as unconstitutional, and they were about to exercise powers under the likewise challenged provisions of the statute. Thus, in those cases, there was the inevitability of the operation of a challenged statute against the appellants. No such situation exists in the cases before us.

Here, the factual and legal setting is entirely different. The JBC only started the screening of the applicants. It has not yet transmitted a list to the President, as, in fact, it still has to make the list. The President has not yet made an appointment for there is yet no vacancy and no shortlist has yet been transmitted to her. The constitutional provisions in question are not yet in operation; they may not even be called into operation. It is not time for the Court to intervene.

A final note.  If petitioners only want guidance from this Court, then, let it be stated that enough guidance is already provided by the Constitution, the relevant laws, and the prevailing jurisprudence on the matter. The Court must not be unduly burdened with petitions raising abstract, hypothetical, or contingent questions. As fittingly phrased by Chief Justice Puno in Lozano –

Given the sparseness of our resources, the capacity of courts to render efficient judicial service to our people is severely limited. For courts to indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is an evil that clearly confronts our judiciary today.

With the above disquisition, I find no compelling need to discuss the other issues raised in the consolidated petitions.

In light of the foregoing, I vote for the dismissal of the consolidated petitions.

ANTONIO EDUARDO B. NACHURA

Associate Justice

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 President’s term, but DISAGREE with the conclusion that the authority to appoint extends to the whole Judiciary.

I.  Prefatory Statement

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 filed, generating arguments of varying shades of validity. Sad but true, what we need in considering all these submissions is simplification and focus on the critical issues, not the mass of opinions that merely pile on top of one another. Based on this standard, this Opinion shall endeavor to be brief, succinct but clear, and may not be the academic treatise lay readers and even lawyers customarily expect from the Court.

The constitutional provisions whose interpretation and application are disputed (the disputed provisions) are Section 15, Article VII (the Article on the Executive Department) and Sections 4(1) and 9 of Article VIII (on the Judicial Department).  Not often mentioned but critical to the consideration of the disputed provision is Section 8, Article VIII on the Judicial and Bar Council (JBC) – the entity whose acts are under scrutiny in the dispute.

Section 15 of Article VII provides:

Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

On the other hand, the relevant Judicial Department provisions read:

Section 4(1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.

x x x

Section 8.  (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.

(2) The regular members of the Council shall be appointed by the President for a term of four years with the consent of the Commission on Appointments.  Of the Members first appointed, the representative of the Integrated Bar shall serve for four years, the professor of law for three years, the retired justice for two years, and the representative of the private sector for one year.

(3)   The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and shall keep a record of its proceedings.

(4)   The regular members of the Council shall receive such emoluments as may be determined by the Supreme Court.  The Supreme Court shall provide in its annual budget the appropriations of the Council.

(5)   The Council shall have the principal functions of recommending appointees to the Judiciary.  It may exercise other functions and duties as the Supreme Court may assign to it.

Section 9.  The Members of the Supreme Court and the judges of the 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 appointment needs no confirmation.

For the lower courts, the President shall issue the appointment within ninety days from the submission of the list.

These provisions are quoted together to stress the role the JBC plays in the appointment process, and that it is effectively an adjunct of the Supreme Court: the Council is under the supervision of the Court, but is fully independent in undertaking its main function; the Chief Justice is the Chair, with the SC Clerk of Court as the Secretary; the emoluments of Council members are determined by the Court with the Council budget a part of the SC budget; and the SC may assign functions and duties to the Council.

II. The Questions of Standing & Justiciability

I completely agree with the ponencia’s ruling on the parties’ standing, their locus standi, to bring their petitions and interventions in their capacities as citizens and lawyers who stand to be affected by our ruling as lawyers or by the impact of our ruling on the nation and the all-important electoral exercise we shall hold in May 2010. Jurisprudence is replete with precedents on the liberal appreciation of the locus standi rule on issues that are of transcendental concern to the nation, and the petitioners very well qualify under these rulings.  In this sense, locus standi is not a critical issue in the present case. In fact, the concern voiced out during the Court’s deliberations, is more on how participation can be limited to those who have substantial contributions, through their submissions, to the resolution of the grave issues before the Court.

While the rule on locus standi can be relaxed, the rule on the need for an actual justiciable case that is ripe for adjudication addresses a different concern and cannot be similarly treated.  I disagree with the ponencia’s ruling on justiciability as I believe some of the petitions before us do not reach the required level of justiciability; others, however, qualify as discussed below so that my disagreement with the lack of justiciability of some of the petitions need not hinder the Court’s consideration of the main issue at hand.

The basic requisite before this Court can rule is the presence of an actual case calling for the exercise of judicial power. This is a requirement that the Constitution itself expressly imposes; in granting the Court judicial power and in defining the grant, the Constitution expressly states that judicial power includes the duty to settle actual controversies involving rights which are legally demandable and enforceable. Thus, the Court does not issue advisory opinions, nor do we pass upon hypothetical cases, feigned problems or friendly suits collusively arranged between parties without real adverse interests. Courts cannot adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging they may be. As a condition precedent to the exercise of judicial power, an actual controversy between litigants must first exist.

An actual case or controversy exists when a case involves a clash of legal rights or an assertion of opposite legal claims that the courts can resolve through the application of law and jurisprudence. The case cannot be abstract or hypothetical as it must be a concrete dispute touching on the legal relations of parties having adverse legal interests. A justiciable controversy admits of specific relief through a decree that is conclusive in character, whereas an opinion only advises what the law would be upon a hypothetical state of facts. An actual case is ripe for adjudication when the act being challenged has a direct adverse effect on the individual challenging it.

In the justiciable cases this Court has passed upon, particularly in cases involving constitutional issues, we have held that the Court also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. The Court carries the symbolic function of educating the bench and the bar on the extent of protection given by constitutional guarantees.

Separately from the above concept of claims involving demandable rights and obligations (but no less real in the strict constitutional sense), is the authority of the Supreme Court to rule on matters arising in the exercise of its power of supervision.

Under Section 6 of Article VIII of the Constitution, the Supreme Court is granted the power of administrative supervision over all courts and the personnel thereof. Pursuant to this power, the Court issues administrative circulars and memoranda to promote the efficient and effective administration of justice, and holds judges and court personnel administratively accountable for lapses they may commit. Through these circulars, memoranda and administrative matters and cases, the Court likewise interprets laws relevant to its power of supervision. The Court likewise issues rules concerning, among others, the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, and the Integrated Bar.

This aspect of the power of the Court – its power of supervision – is particularly relevant in this case since the JBC was created “under the supervision of the Supreme Court,” with the “principal function of recommending appointees to the Judiciary.”  In the same manner that the Court cannot dictate on the lower courts on how they should decide cases except through the appeal and review process provided by the Rules of Court, so also cannot the Court intervene in the JBC’s authority to discharge its principal function.  In this sense, the JBC is fully independent as shown by A.M. No. 03-11-16-SC or Resolution Strengthening The Role and Capacity of the Judicial and Bar Council and Establishing the Offices Therein. In both cases, however and unless otherwise defined by the Court (as in A.M. No. 03-11-16-SC), the Court can supervise by ensuring the legality and correctness of these entities’ exercise of their powers as to means and manner, and interpreting for them the constitutional provisions, laws and regulations affecting the means and manner of the exercise of their powers as the Supreme Court is the final authority on the interpretation of these instruments.  A prime example of the exercise of the Court’s power of supervision is 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, respectively, A.M. No. 98-5-01-SC, November 9, 1998 (hereinafter referred to as Valenzuela) where the Court nullified the oath of office taken by Judge Valenzuela, while at the same time giving its interpretation of how the election ban against appointment operates on the Judiciary, thereby setting the guidelines on how Section 15, Article VII is to be read and interpreted.  The Valenzuela case shall be discussed more fully below.

a. The De Castro Petition

In his petition for certiorari and mandamus, Arturo De Castro (in G.R. 191002) seeks the review of the action of the JBC deferring the sending to the incumbent President of the list of nominees for the position of Chief Justice, and seeks as well to compel the JBC to send this list to the incumbent President when the position of Chief Justice becomes vacant.  He posits that the JBC’s decision to defer action on the list is both a grave abuse of discretion and a refusal to perform a constitutionally-mandated duty that may be compelled by mandamus.

On its face, this petition fails to present any justiciable controversy that can be the subject of a ruling from this Court.  As a petition for certiorari, it must first show as a minimum requirement that the JBC is a tribunal, board or officer exercising judicial or quasi-judicial functions and is acting outside its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. A petition for mandamus, on the other hand, at the very least must show that a tribunal, corporation, board or officer unlawfully neglects the performance of an act which the law specifically enjoins as a duty.”

The petition facially fails to characterize the JBC as a council exercising judicial or quasi-judicial functions, and in fact states that the JBC does not have any judicial function. It cannot so characterize the JBC because it really does not exercise judicial or quasi-judicial functions. It is not involved in the determination of rights and obligations based on the constitution, laws and regulations; it is an administrative body under the supervision of the Supreme Court and was created principally to nominate appointees to the Judiciary. As such, it deals solely with the screening of applicants who wish to have the privilege of applying for judicial positions.

From the point of view of substance, the petition admits that the vacancy for the position of Chief Justice will not occur until May 17, 2010, and alleges that the JBC has resolved “to defer the decision to whom to send the list of 3 nominees, whether to the incumbent President or to the next President following the May 11, 2010 national elections in view of Section 15, Article VII of the Constitution that bans appointments during the election period,” citing various newspaper clippings and the judicial notice of this Court.

As suggested, we take judicial notice of the JBC action on the nomination process for the position of Chief Justice, as circulated in the media and as evidenced by official JBC records, and we note that the JBC has taken preliminary steps but not conclusive action on the submission of a list of nominees for the position of Chief Justice. So far, the JBC has announced the forthcoming vacancy, the opening of the position to applicants, the announcement of nominees, and the invitation for comments. These are confirmed in the JBC’s Comment dated February 25, 2010 which further states that “the next stage of the process will be the public interview of the candidates, and the preparation of the shortlist of candidates have yet to be undertaken.. ..including the interview of the constitutional experts as may be needed.” Thus, this Court is fully aware, based on its official knowledge that the petition cites, of the extent of JBC developments in the nomination process, and the petition cannot invoke our judicial notice to validly allege that the JBC has deferred action on the matter.  For the petition insist that a deferment has taken place is to mislead this Court on a matter that is within its official knowledge.

Neither the Constitution nor the Rules of Procedure of the JBC categorically states when a list of nominees for a vacant Supreme Court position shall be submitted to the President, although the Constitution gives the President 90 days within which to fill the vacancy. This presidential deadline implies that the JBC should submit its list of nominees before, or at the latest, on the day the vacancy materializes so as not to shorten the 90-day period given to the President within which to act.

Given these timelines and the May 17, 2010 vacancy date – considered with the allegations regarding the nature of the JBC’s functions and its actions that we are asked to judicially notice – the De Castro petition filed on February 9, 2010 clearly does not present a justiciable case for the issuance of a writ of certiorari. The petition cannot make an incorrect and misleading characterization of the JBC action, citing our judicial notice as basis, and then proceed to claim that grave abuse of discretion has been committed. The study of the question of submitting a list to the President in the JBC’s step-by-step application and nomination process is not a grave abuse of discretion simply because the petition calls it so for purposes of securing a justiciable case for our consideration.

Since the obligation to submit a list will not accrue until immediately before or at the time the vacancy materializes (as the petition’s prayer in fact admits), no duty can likewise be said to have as yet been neglected or violated to serve as basis for the special civil action of mandamus.  The JBC’s study of the applicable constitutional issue, as part of the JBC’s nomination process, cannot be “tantamount to a refusal to perform its constitutionally-mandated duty.” Presently, what exists is a purely potential controversy that has not ripened into a concrete dispute where rights have been violated or can already be asserted.

In these lights, the Court should dismiss the De Castro petition outright.  Similarly, the oppositions filed by way of intervening in and anchored on the De Castro petition should similarly be dismissed.

b. The Peralta Petition.

John G. Peralta’s petition (G.R. 191 149) is likewise for certiorari and mandamus.  Like De Castro’s, he failed to allege that the JBC exercises judicial or quasi-judicial functions – a must in any petition for certiorari. In fact the Peralta petition can be described as an imperfect carbon copy of De Castro’s petition since it similarly asks for the “review of the JBC action in deferring to transmit to the incumbent President the list of nominees for appointment of a new Chief Justice, and to compel the JBC to send the same to the incumbent President for appointment of a Chief Justice, when the position becomes vacant upon the mandatory retirement of the Honorable Chief Justice Reynato S. Puno.”

Peralta only differs from De Castro because it does not allege “deferment” on the basis of media reports and judicial notice; instead, it attaches the January 18, 2010 resolution of the JBC as Annex “A” and cites this as a basis.  An examination of Annex “A,” however, shows that the JBC did not in fact resolve to defer the submission of the list of nominees; the JBC merely stated that – “As to the time to submit this shortlist to the proper appointing authority, in light of the Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all view on the matter.” This is not a deferment, nor is it a refusal to perform a duty assigned by law as the duty to submit a list of nominees will not mature until a vacancy has or is about to occur.

For the same absence of a justiciable case, the Peralta petition for certiorari and mandamus and all related interventions should be dismissed outright.

c.  The PHILCONSA Petition.

The petition of The Philippine Constitutional Association (PHILCONSA, G.R. 191057) is for mandamus under Rule 65 of the Rules of Court.

It seeks to compel the JBC to include the names of Senior Justices Antonio Carpio and Conchita Carpio-Morales, and Prosecutor Dennis Villa Ignacio, in the list of nominees for the position of Chief Justice although these nominees have manifested that they want their names submitted to the incoming, not to the incumbent, President of the Philippines.

The petition also seeks various declarations by this Court, among them, that Section 15, Article VIII should apply only to the Executive Department and not to the Judiciary; and that the Decision of this Court in Valenzuela should be set aside and overruled.

As basis, the petition alleges that the issues raised in the petition have spawned “a frenzied inflammatory debate on the constitutional provisions”. . that has “divided the bench and the bar and the general public as well.” It likewise posits that due to the positions the nominees have taken, a “final authoritative pronouncement” from this Court on the meaning and construction of Sections 4(1), 8(5) and 9, Article VIII. . .in relation with Section 15, Article VII” is necessary. The petition grounds itself, too, on the needs of public interest and public service.

On the whole, the PHILCONSA petition merely asks for a declaration from this Court of the meaning and interpretation of the constitutional provisions on the appointment of the Chief Justice, the Members of the Court, and the Judiciary in general during the election ban period.

As we did with the Castro petition and based on the same standards we discussed above, we hold that the PHILCONSA petition presents no justiciable controversy that can be the basis for its consideration as a petition for mandamus and for its adjudication on the merits.  On its face, the petition defines no specific duty that the JBC should exercise and has neglected to exercise, and presents no right that has been violated nor any basis to assert any legal right. Like the De Castro petition, it only presents to the Court a potential controversy that has not ripened.

Consequently, the Court should rule that the PHILCONSA petition should be dismissed outright together with any intervention supporting or opposing this petition.

d. The Mendoza Petition

The Mendoza petition (A.M. 10-2-5-SC) is unique as even its docket case number will show; it is presented as an administrative matter for the Court’s consideration pursuant to its power of supervision over judges and over the JBC, following the lead taken in the Valenzuela case (an A.M. case).

The cited Valenzuela case is rooted in a situation not far different from the present case; a vacancy in the Court had occurred and a difference of opinion arose between the Executive and the Court on the application of Section 15, Article VII, in relation with Section 4(1) and 9 of Article VIII, of the Constitution. An exchange of letters took place between the Palace and the Court on their respective positions.  In the meanwhile, the President appointed two RTC judges (Valenzuela and Vallarta) within the two-month period prior to the election. The Palace forwarded the judges’ appointments to the Court, thus confronting Chief Justice Narvasa with the question of whether – given the election ban under Section 15, Article VII that prima facie applies – he should transmit the appointment papers to the appointed judges so they could take their oaths in accordance with existing practice.  At that point, the Court decided to treat the matter as an “administrative matter” that was ripe for adjudication.

An administrative matter that is entered in the Court’s docket is either an administrative case (A.C.) or an administrative matter (A.M.) submitted to the Court for its consideration and action pursuant to its power of supervision.  An A.C. case involves disciplinary and other actions over members of the Bar, based on the Court’s supervision over them arising from the Supreme Court’s authority to promulgate rules relating to the admission to the practice of law and to the Integrated Bar.  Closely related to A.C. cases are the Bar Matter (B.M.) cases particularly involving admission to the practice of law. An A.M. is a matter based on the Supreme Court’s power of supervision: under Section 6, Article VIII, this refers to administrative supervision over all courts and the personnel thereof; under Section 8, it refers to supervision over the JBC.

In using an administrative matter as its medium, the Mendoza petition cites as basis the effect of a complete election ban on judicial appointments (in view of the already high level of vacancies and the backlog of cases) and submits this as an administrative matter that the Court, in the exercise of its supervision over the Judiciary, should  act upon. At the same time, it cites the “public discourse and controversy” now taking place because of the application of the election ban on the appointment of the Chief Justice, citing in this regard the very same reasons mentioned in Valenzuela about the need to resolve the issue and avoid the recurrence of conflict between the Executive and the Judiciary on the matter; and the need to “avoid any possible polemics concerning the matter.” The petition mentions as well that the Court addressed the election ban issue in Valenzuela as an A.M. case, and apparently takes the lead from this decided A.M. matter.

An undeniable feature of the Mendoza petition, compared to Valenzuela, is its lack of any clear and specific point where an actual actionable case arose (the appointment of two RTC judges during the election ban period) calling for a determination of how the Chief Justice and the Court should act. The Mendoza petition, however, does not look up to the Court’s supervisory authority over lower court personnel pursuant to Section 6 of Article VIII of the Constitution, in the way the Court did in ValenzuelaExpressly, the Mendoza petition looks up to the Court’s supervisory authority over the JBC, an authority that the Court in fact asserted in Valenzuela when, in the exercise of “its power of supervision over the Judicial and Bar Council,” it “INSTRUCTED” the JBC “to defer all actions on the matter of nominations to fill up the lone vacancy in the Supreme Court or any other vacancy until further orders.”

From the time of Valenzuela up to the present, the governing law and the relationships between the Court and the JBC have not changed; the supervisory relationship still exists full strength.  The JBC is now in fact waiting for the Court’s action on how it regards the Valenzuela ruling – whether the Court will reiterate, modify or completely abandon it. The JBC expressly admitted its dilemna in its Comment when it said:  “Since the Honorable Court is the final interpreter of the Constitution, the JBC will be guided by its decision in these consolidated Petitions and Administrative Matter.” Under these plain terms, the JBC recognizes that a controversy exists on the issue of submitting a shortlist to the President and it will not act except with guidance from this Court.  This is a point no less critical, from the point of view of supervision, than the appointment of the two judges during the election ban period in Valenzuela.

That the JBC has taken this stance is not surprising given the two petitions for prohibition filed by Jaime N. Soriano (G.R. No. 191032) and Atty. Amador Z. Tolentino, Jr., (G.R. No. 191342) that, on their face, show a cause of action ripe for adjudication.

d.1 The Soriano and Tolentino Petitions

Soriano seeks to bar the JBC from continuing the selection processes on the ground that the Supreme Court, not the President, appoints the Chief Justice. Tolentino, on the other hand, seeks the issuance of a writ of prohibition under Rule 65 of the 1997 Rules of Court, among others, to enjoin and restrain the JBC from submitting a list of nominees for judiciary positions to the incumbent President, on the ground that an existing election ban against appointments is in place under Section 15, Article VII of the Constitution.

In the simplest terms, the JBC – by its own admission in its Comment and by Soriano’s and Tolentino’s own admissions in their petitions – is now in the process of preparing its submission of nominees for the vacancy to be created by the retirement of the incumbent Chief Justice, and has already completed the initial phases of this preparation.  Soriano and Tolentino want to stop this process and compel the JBC to immediately discontinue its activities, apparently on the theory that nomination is part of the appointment process

While their cited grounds and the intrinsic merits of these grounds vary, the Soriano and Tolentino petitions, on their faces, present actual justiciable controversies that are ripe for adjudication. Section 15, Article VII of the Constitution embodies a ban against appointments by the incumbent President two months before the election up to the end of her term. A ruling from this Court (Valenzuela) is likewise in place confirming the validity of this ban against the Judiciary, or at least against the appointment of lower court judges. A vacancy in the position of Chief Justice will occur on May 17, 2010, within the period of the ban, and the JBC is admittedly preparing the submission of its list of nominees for the position of Chief Justice to the President.  Under the terms of Section 15, Article VII and the obtaining facts, a prima facie case exists supporting the petition for violation of the election ban.

d.2. Supervision over the JBC.

That the JBC – now under a different membership – needs guidance on the course of action it should take on the constitutional issues posed, can best be understood when the realities behind the constitutional provisions are examined.

A first reality is that the JBC cannot, on its own due to lack of the proper authority, determine the appropriate course of action to take under the Constitution.  Its principal function is to recommend appointees to the Judiciary and it has no authority to interpret constitutional provisions, even those affecting its principal function; the authority to undertake constitutional interpretation belongs to the courts alone.

A second reality is that the disputed constitutional provisions do not stand alone and cannot be read independently of one another; the Constitution and its various provisions have to be read and interpreted as one seamless whole, giving sufficient emphasis to every aspect in accordance with the hierarchy of our constitutional values.  The disputed provisions should be read together and, as reflections of the will of the people, should be given effect to the extent that they should be reconciled.

The third reality, closely related to the second, is that in resolving the coverage of the election ban vis-à-vis the appointment of the Chief Justice and the Members of the Court, provisions of the Constitution other than the disputed provisions must be taken into account. In considering when and how to act, the JBC has to consider that:

1.                 The President has a term of six years which begins at noon of June 30 following the election, which implies that the outgoing President remains President up to that time. (Section 4, Article VII).  The President assumes office at the beginning of his or her term, with provision for the situations where the President fails to qualify or is unavailable at the beginning of his term (Section 7, Article VII).

2.                 The Senators and the Congressmen begin their respective terms also at midday of June 30 (Sections 4 and 7, Article VI).  The Congress convenes on the 4th Monday of July for its regular session, but the President may call a special session at any time. (Section 15, Article VI)

3.                 The Valenzuela case cited as authority for the position that the election ban provision applies to the whole Judiciary, only decided the issue with respect to lower court judges, specifically, those covered by Section 9, Article VIII of the Constitution.  Any reference to the filling up of vacancies in the Supreme Court pursuant to Section 4(1), Article VIII constitutes obiter dictum as this issue was not directly in issue and was not ruled upon.

These provisions and interpretation of the Valenzuela ruling – when read together with disputed provisions, related with one another, and considered with the May 17, 2010 retirement of the current Chief Justice – bring into focus certain unavoidable realities, as follows:

1.                 If the election ban would apply fully to the Supreme Court, the incumbent President cannot appoint a Member of the Court beginning March 10, 2010, all the way up to June 30, 2010.

2.                 The retirement of the incumbent Chief Justice – May 17, 2010 – falls within the period of the election ban.  (In an extreme example where the retirement of a Member of the Court falls on or very close to the day the election ban starts, the Office of the Solicitor General calculates in its Comment that the whole 90 days given to the President to make appointment would be covered by the election ban.)

3.                 Beginning May 17, 2010, the Chief Justice position would be vacant, giving rise to the question of whether an Acting Chief Justice can act in his place.  While this is essentially a Supreme Court concern, the Chief Justice is the ex officio Chair of the JBC; hence it must be concerned and be properly guided.

4.                 The appointment of the new Chief Justice has to be made within 90 days from the time the vacancy occurs, which translates to a deadline of August 15, 2010.

5.                 The deadline for the appointment is fixed (as it is not reckoned from the date of submission of the JBC list, as in the lower courts) which means that the JBC ideally will have to make its list available at the start of the 90-day period so that its process will not eat up the 90-day period granted the President.

6.                 After noon of June 30, 2010, the JBC representation from Congress would be vacant; the current representatives’ mandates to act for their principals extend only to the end of their present terms; thus, the JBC shall be operating at that point at less than its full membership.

7.                 Congress will not convene until the 4th Monday of July, 2010, but would still need to organize before the two Houses of Congress can send their representatives to the JBC – a process may extend well into August, 2010.

8.                 In July 2010, one regular member of the JBC would vacate his post.  Filling up this vacancy requires a presidential appointment and the concurrence of the Commission on Appointments.

9.                 Last but not the least, the prohibition in Section 15, Article VII is that “a President or Acting President shall not make appointments.” This prohibition is expressly addressed to the President and covers the act of appointment; the prohibition is not against the JBC in the performance of its function of “recommending appointees to the Judiciary” – an act that is one step away from the act of making appointments.

d.3. Conclusion on the Mendoza Petition

Given the justiciable Soriano and Tolentino petitions that directly address the JBC and its activities, the impact of the above-outlined realities on the grant of a writ of prohibition, and the undeniable supervision that the Supreme Court exercises over the JBC as well as its role as the interpreter of the Constitution – sufficiently compelling reason exists to recognize the Mendoza petition as a properly filed A.M. petition that should fully be heard in these proceedings to fully ventilate the supervisory aspect of the Court’s relationship with the JBC and to reflect, once again, how this Court views the issues first considered in Valenzuela. The Court’s supervision over the JBC, the latter’s need for guidance, and the existence of an actual controversy that the Soriano and Tolentino cite, save the Mendoza petition from being one for declaratory relief, which petition is originally cognizable by the Regional Trial Court, not by this Court.

To summarize the preliminary considerations of locus standi and justiciability and the outstanding issues for resolution, the main issue in these consolidated cases continues to be whether Section 15, Article VII of the Constitution limiting the authority of the President of the Philippines to exercise her power of appointment shall prevail over the mandate, provided under Section 4(1) and 9, Article VIII, that appointments to the Supreme Court shall be within 90 days from the occurrence of the vacancy, and within 90 days from the JBC’s submission of its list of nominees for the lower courts.  A sub-issue is the continued effectiveness and strength of the Valenzuela case as guide and precedent in resolving the above issue.  All these should be read in the context of the petitions for prohibition and the Mendoza A.M. petition, as the De Castro and the PHILCONSA petitions suffer from lack of justiciability and prematurity.

III. The Merits of the Petitions

a. The Soriano Petition.

The Soriano petition presents a very novel interpretation of Section 9, Article VIII in its position that the authority to appoint the Chief Justice is lodged in the Court, not in the President.

The correctness of this reading of the law is contradicted by both history and by the law itself.

History tells us that, without exception, the Chief Justice of the Supreme Court has always been appointed by the head of the Executive Department.  Thus, Chief Justices Cayetano Arellano, Victorino Mapa, Manuel Araullo, Ramon Avancena, Jose Abad Santos, Jose Yulo, Manuel Moran and all the Chief Justices after Philippine independence were appointed by the Chief Executive. The only difference in their respective appointments is the sovereignty under which they were appointed.

The Chief Justices under the American regime were appointed by the President of the United States; one Chief Justice each was appointed under the Commonwealth and under the Japanese Military Administration; and thereafter all the Chief Justices were appointed by the Philippine President.  In every case, the appointing authority was the Chief Executive.

The use of the generic term “Members of the Supreme Court” under Section 9, Article VIII in delineating the appointing authority under the 1987 Constitution, is not new.  This was the term used in the present line of Philippine Constitutions, from 1935 to 1987, and the inclusion of the Chief Justice with the general term “Member of the Court” has never been in doubt. In fact, Section 4(1) of the present Constitution itself confirms that the Chief Justice is a Member of the Court when it provides that the Court “may sit en banc or, in its discretion, in divisions of three, five, or seven Members.” The Chief Justice is a Member of the En Banc and of the First Division – in fact, he is the Chair of the En Banc and of the First Division –  but even as Chair is counted in the total membership of the En Banc or the Division for all purposes, particularly of quorum.  Thus, at the same time that Section 4(1) speaks of a “Supreme Court. . . composed of one Chief Justice and fourteen Associate Justices,” it likewise calls all of them Members in defining how they will 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.

b. The Tolentino and Mendoza Petitions;

the OSG and JBC Comments

This is only a Separate Opinion, not a ponencia, and rather than recite or tabulate the various positions taken in these submissions, I shall instead discuss the issues based on topically arranged subdivisions and introduce the various positions as arguments, for or against, without always naming the source.  This is solely for ease of presentation, clarity and continuity rather than for any devious reason.

b.1.  Does a conflict of provisions textually exist?

No need exists to further recite Section 15, Article VII, on the one hand, and Sections 4(1) and 9, Article VIII, on the other, as they are already quoted at the start of this Opinion.  I do not believe any of the parties, though, will dispute that a conflict exists even from the text of these provisions alone.

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 words or terms shall be understood in their ordinary meaning.  In this case, the individual provisions, in themselves, are clear; the conflict surfaces when they operate in tandem or against one another.

b.2. The Valenzuela Ruling.

The Valenzuela decision gives the full flavor of how the election ban issue arose because of Chief Justice Narvasa’s very candid treatment of the facts and the issue.  Valenzuela openly stated that at the root of the dispute was the then existing vacancy in the Court and the difference of opinion on the matter between the Executive and the Court on the application of Section 15, Article VII, in relation with Section 4(1) and 9 of Article VIII, of the Constitution.

What appears very clear from the decision, however, is that the factual situation the Court ruled upon, in the exercise of its supervision of court personnel, was the appointment by the President of two RTC judges during the period of the ban.  It is clear from the decision, too, that no immediate appointment was ever made to the Court for the replacement of retired Justice Ricardo Francisco as the JBC failed to meet on the required nominations prior to the onset of the election ban.

From this perspective, it appears clear to me that Valenzuela should be read and appreciated for what it is – a ruling made on the basis of the Court’s supervision over judicial personnel that upholds the election ban as against the appointment of lower court judges appointed pursuant to the period provided by Section 9 of Article VIII.  Thus, Valenzuela’s application to the filling up of a vacancy in the Supreme Court is a mere obiter dictum as the Court is largely governed by Section 4(1) with respect to the period of appointment.  The Section 4(1) period, of course and as already mentioned above, has impact uniquely its own and different from that created by the period provided for the lower court under Section 9.

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.  Peralta 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, Peralta is likewise mistaken in his appeal to the principle of stare decisis.  The stability of judgments is indeed a glue that 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.

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 Court’s 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 is inherently unequal in the context of public education. I mention this, if only as a reminder to 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.

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.

The separate realities that Section 15, Article VII and Section 4(1) bring to the fore now confront us with the question of prioritizing our constitutional values in terms of two provisions that effectively operate in their separate spheres, but which conflict when they directly confront one another.  The direct question is: should we really implement Section 15 above everything else, even at the expense of having an incomplete Supreme Court, or should we recognize that both provisions should be allowed to operate within their own separate spheres with one provision being an exception to the other, instead of saying that one provision should absolutely prevail over the other?

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.

Of course, partisanship is an objection that can apply to individual Members of the Court and even to the applicants for the position of Chief Justice.  But this is a different question that should not result in placing the system of appointments to the Court within the coverage of the election ban; objections personal to individual Members and to individual applicants are matters addressed to the JBC and to the final appointing authority – the President.  It is for reasons of these possible individual objections that the JBC and even the Office of the President are open to comments and objections.

Incidentally, the incumbent President is not up for re-election by operation of the Constitution so that a partisanship objection in the President’s favor has no basis.  If any, an objection personal to the Supreme Court applicant may be raised because of perceived bias or partisanship in favor of the President’s choice in the elections.  This would be a meaningless objection, however, if it is considered that the same objection can be raised against a Supreme Court nominee appointed by the incoming President; this new appointee will sit in judgment in the electoral dispute that follows the presidential elections and can be chosen for bias towards the new President and his party.  In this sense, an objection on the basis of personal bias is not at all an appropriate consideration when the issue is systemic in its application – the application of the election ban on appointments to Supreme Court appointments.

In any case, the comments made on this point in the petitions are conjectural and speculative and can hardly be the bases for adjudication on the merits.  If records of the Court will matter, the duly proven facts on record about the immediately past Chief Justices speak for themselves with respect to partisanship in favor of the sitting President. It is a matter of public record that Chief Justices Davide, Panganiban and Puno did not try to please their respective incumbent Presidents, and instead ruled in the way that the law, jurisprudence and the requirements of public interests dictated.

The Mendoza petition presents some very compelling reasons why the Supreme Court, if not the whole Judiciary, should be exempt from the coverage of the election ban that Section 15, Article VII imposes.

The Chief Justice is the head of the Judiciary in the same manner that the President is the Chief Executive and the Senate President and the Speaker of the House head the two Houses of Congress.  The Constitution ensures, through clear and precise provisions, that continuity will prevail in every branch by defining how replacement and turnover of power shall take place.  Thus, after every election to be held in May, a turn over of power is mandated on the following 30th of June for all elective officials.

For the Supreme Court where continuity is by the appointment of a replacement, the Constitution requires that the replacement Member of the Court, including the Chief Justice, should be appointed within 90 days from the occurrence of the vacancy.  This is the sense of urgency that the Constitution imparts and is far different from the appointment of the justices and judges of the lower courts where the requirement is 90 days from the JBC’s submission of its list.  This constitutional arrangement is what the application of Section 15, Article VII to the appointment of Members of the Supreme Court will displace.

The Peralta petition argues that the appointment of a Chief Justice is not all that important because the law anyway provides for an Acting Chief Justice. While this is arguably true, Peralta misunderstands the true worth of a duly appointed Chief Justice.  He forgets, too, that a Supreme Court without a Chief Justice in place is not a whole Supreme Court; it will be a Court with only 14 members who would act and vote on all critical matters before it.

The importance of the presence of one Member of the Court can and should never be underestimated, particularly on issues that may gravely affect the nation.  Many a case has been won or lost on the basis of one vote.  On an issue of the constitutionality of a law, treaty or statute, a tie vote – which is possible in a 14 member court – means that the constitutionality is upheld.  This was our lesson in Isagani Cruz v. DENR Secretary.

More than the vote, Court deliberation is the core of the decision-making process and one voice is less is not only a vote less but a contributed opinion, an observation, or a cautionary 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. 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 Court’s membership shall immediately be filled, is evidenced no less than by the Constitutional Commission’s own deliberations where the following exchange took place:

Mr. De Castro:  I understand that our justices now in the Supreme Court, together with the Chief Justice, are only 11.

Mr. ConcepcionL Yes.

Mr. De Castro: And the second sentence of this subsection reads: Any vacancy shall be filled within ninety days from the occurrence thereof.”

Mr. Concepcion: That is right.

Mr. De Castro: Is this a now a mandate to the executive to fill the vacancy.

Mr. Concepcion:  That is right.  That is borne out of the fact that in the past 30 years, seldom has the Court had a complete complement.

This exchange, to my mind, removes any remaining doubt about the framers’ recognition of the need to always have a full Court.

b.3. Construction of the Disputed Provisions

A notable aspect of the Valenzuela ruling in the context of constitutional interpretation, is its conclusion that in a conflict between two provisions – one in the Article on the Executive Department and the other an Article in the Judicial Department – one of them should completely give way and the other should prevail. This is a very unusual approach in interpretation, particularly if the apparently conflicting provisions are from the Constitution – an instrument that has painstakingly been deliberated upon by the best and the brightest minds in the country.  For, the rule in constitutional interpretation is that the constitution must be appreciated and interpreted as one single instrument, with apparently conflicting provisions reconciled and harmonized in a manner that will give all of them full force and effect.

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 Justice’s 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.

The former Chief Justice’s reason weightier reason arose from the Aytona where mass appointments were recognized as an evil that could affect the integrity of our elections.  Because of the number of appointments that may currently be involved if appointments to lower courts are allowed before the May 2010 election (around 537 vacancies at a 24.5% vacancy rate at the first and second level courts according to the figures of the Mendoza petition) and the power and influence judges may exert over their local communities, an exemption from the election ban may indeed bring about (or at least give the appearance of bringing about) the evils that the framers of the Constitution and this Court itself sought to remedy under Section 15, Article VII and the Aytona decision, respectively.

For this reason, I do not disagree with Valenzuela for its ruling on lower court judges; Section 15, Article VII may indeed prevail over Section 9, Article VIII.

In contrast with this conclusion, an interpretation that Section 15, Article VII will similarly prevail over Section 4(1), Article VIII is clearly misplaced.  The structure, arrangement and intent of the Constitution and the public policy reasons behind them simply speak against the interpretation that appointments of Members of the Court should be subject to the election ban.  These are all discussed above and need not be repeated here.

Principles of constitutional interpretation, too, militate against an interpretation that would give primacy to one branch of government over another in the absence of very compelling reasons.  Each branch of government is in place for a particular reason and each one should be given every opportunity to operate to its fullest capacity and potential, again unless very compelling reasons exist for the primacy of one over the other.  No such compelling reason so far exists or has been cited.

Based on the values that the disputed provisions embody, what we need to balance are the integrity of our electoral process and the protection needed to achieve this goal, as against the Judiciary’s need for independence and strength enforced through a Supreme Court that is at its full strength.  To be sure, the nation and our democracy need one as well as the other, for ultimately both contribute to our overall national strength, resiliency, and stability.  Thus, we must, to the extent possible, give force and effect to both and avoid sacrificing one for the other.

To do this and to achieve the policy of insulating our constitutional process from the evils of vote-buying, influence peddling and other practices that affect the integrity of our elections, while at the same time recognizing the Judiciary’s and the nation’s need to have a full Supreme Court immediately after a vacancy occurs, Section 4(1) of Article VIII should be recognized as a narrow exception granted to the Judiciary in recognition of its proven needs.  This is a narrow exception as the election ban of Section 15, Article VII, shall apply with full force and effect on the appointment of lower court justices and judges.

c.  Guidelines for the Judicial and Bar Council

The resolution of the present dispute can only be complete if clear guidelines are given to the JBC on how it shall conduct itself under the present circumstances pursuant to this Court’s ruling.  The Court should therefore direct the JBC to:

A.     forthwith  proceed with its normal processes for the submission of the list of nominees for the vacancy to be created by the retirement of Chief Justice Reynato S. Puno, to be submitted to the President on or before the day before the retirement of the Chief Justice;

B.     in the course of preparing its list of nominees, determine with certainty the nominees’ readiness to accept the nomination as well as the appointment they may receive from the President, deleting from the list the nominees who will refuse to confirm their full readiness to accept without conditions either their nomination or their appointment, if they will be appointed;

C.     proceed with its normal processes for the preparation of the lists for the vacancies for the lower courts, to be submitted to the Office of the President as soon as the election ban on appointments is lifted; and

D.     in all other matters not otherwise falling under the above, conduct itself in accordance with this Decision.

In light of all the foregoing, I vote to:

1.     Dismiss the De Castro and Peralta petitions and for not being justiciability and for prematurity.

2.     Dismiss the Soriano and the Tolentino petitions for lack of merit.

3.     Dismiss all petitions and motions for interventions supporting or opposing the above petitions.

4.     Grant the Mendoza petition and declare for the JBC’s guidance that:

a.                          Section 4(1), Article VIII is an exception to the coverage of Section 15, Article VII; appointments to the Supreme Court are not subject to the election ban under Section 15, Article VII so that the JBC can submit its list of nominees for the expected vacancy for the retirement of Chief Justice Reynato S. Puno, on or before the vacancy occurs, for the President’s consideration and action pursuant to Section 4(1), Article VIII ;

b.                          Reiterate our ruling in In re: Valenzuela and Vallarta that no other appointments of judges of the lower courts can be made within the election ban period, pursuant to Section 15, Article VII.

ARTURO D. BRION

Associate Justice

________________________________________________________________________________________

For my Two Cents:

I found new respect for Justice Conchita Carpio-Morales.  Mabuhay po kayo Justice Carpio-Morales!

Chomsky & Foucault in Vintage Reel

I just found a new vice in youtube…  well, in as much as I surf the site to watch videos of hilarious stuff in the web it came to my attention that it also holds a bank of philosophical debates, commentaries, and even interviews of contemporary thinkers.  I would first like to share this debate between Noam Chomsky and Michel Foucault in a dutch television debate in vintage reel:

Part I

Part II

Sources:  http://www.youtube.com/watch?v=WveI_vgmPz8 and http://www.youtube.com/watch?v=S0SaqrxgJvw

Although I appreciate the strong points of Foucault and the subtlety of Chomsky, what these two great minds failed to consider is that although there are various interplay of power in the society, the discourse on the receiving end of power is left hanging (or that maybe I have not yet watched the whole reel).  It came to me while watching the video, that in as much as the people and the institutions of our society are in motion with the phenomena of power thus being created and recreated in all the movement, the receiving end of all these games, rules, knowledge, technology, or command must be seen idiosyncratically.

I cannot help but argue that although human nature is non-existent or is yet to be deciphered if you will, man is still man, and that he is like ever before in the scheme of things.  Whether he is there making or being made in the system is of no consequence, because at the end of the day he still is, what is.  An example of this is the very notion of the intellectual, that although some may argue that the likes of Foucault is anti-enlightenment and or that Chomsky and Jurgen Habermas is on the  other side of the debate, the debate itself is well within the system and that the  discourse or interplay of various thinking may in multiple levels is in fact detached from the entire scheme of power, or that maybe I am just a dreamer.  Although a propensity of it may be false, the probability that not all that is exchanged in the contemporary is not really the effect of our reality but must have been caused by something more powerful that cannot be found in the order of things where power resides, but in the discovery or harmonization of the chasm that still bewilders us, the nature of man.  Until further notice, I put forward that although the system of power that makes the world as it is  –  obscured; what is amazing is that the man is capable in different strata to make life out of all these.

Team PolSci, Bests 2010 AB Debate Series

I would like to congratulate the champions of the 2010 Hardline Stance: The AB Debate Series of the Faculty of Arts and Letters of the University of Santo Tomas:

TEAM POLSCI

composed of: Phillip Padlan, Danielicah Cruz, and Mark Bornales; John Paul Fabella, Tyrone Ong, and James Patrick; headed by Geraiza Joy Floranda

I am very very very proud of you guys!

***

I would also like to congratulate Joy Binay, and the rest of the officers of the AB Debate Parliament, and to Paolo Mercado and Art Diaz, the chief Adjudicator and Deputy-Chief Adjudicator respectively for a job well done

In all the Chaos…

Our family continues to join the world in prayer for the victims of the twin catastrophes in Haiti and Chile.  I hope we can all do our little parts in this cycle of natural phenomena and that we find strength in all the chaos we are all into.  Now that the world is in our fingertips may we all find the courage to lift these fingers and click to our collective effort to make sense of it all…  That in all of these we can pull ourselves from all the rubble make living possible in peace and safety.

START CLICKING:

THE INTERNATIONAL COMMITTEE

OF THE RED CROSS

I hope these two songs may inspire you to give although it may be hard especially during these times, but I hope we find bliss in the sharing…

We are the World 1985

Source: http://www.youtube.com/watch?v=ne7fPpxAnuM

We are the World 2010

Source: http://www.youtube.com/watch?v=Glny4jSciVI

Maligayang Pagbabalik!

Welcome Home!

ATTY. OMAR DE PERALTA

The First Grand Praefectus

of The Most Prestigious

AEGIS JVRIS FRATERNITY


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