DE CASTRO VS.

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ARTURO M. DE CASTRO vs. JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT
GLORIA MACAPAGAL ARROYO
G.R. No. 191002, March 17, 2010
FACTS: 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.
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. Also
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.
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.
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.
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 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 Presidents
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.

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.
ISSUE: Whether the incumbent President can appoint the successor of Chief Justice
Puno upon his retirement.
HELD:
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.
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 Presidents or Acting Presidents term does not refer to the Members of the
Supreme Court.
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 Presidents or Acting Presidents term does not refer to the Members of the
Supreme Court.
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.

De Castro v. JBC
Facts:
This case is based on multiple cases field with dealt with the controversy that has arisen from
the forthcoming compulsory requirement of Chief Justice Puno on May 17, 2010 or seven days
after the presidential election. 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, the JBC passed a resolution which stated that they
have 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.
As a result, the JBC opened the position of Chief Justice for application or recommendation,
and published for that purpose its announcement in the Philippine Daily Inquirer and the
Philippine Star.
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 to the public to file their sworn complaint, written

report, or opposition, if any, not later than February 22, 2010.

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 in this case being unresolved.
The compiled cases which led to this case and the petitions of intervenors called for either the
prohibition of the JBC to pass the shortlist, mandamus for the JBC to pass the shortlist, or that
the act of appointing the next Chief Justice by GMA is a midnight appointment.
A precedent frequently cited by the parties is the In Re Appointments Dated March 30, 1998 of
Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the RTC of Branch 62,
Bago City and of Branch 24, Cabanatuan City, respectively, shortly referred to here as the
Valenzuela case, 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.

ISSUES

W/N the petitioners have legal standing?

W/N there is justiciable controversy that is ripe for judicial determination?

W/N the incumbent President appoint the next Chief Justice?

W/N mandamus and prohibition will lie to compel the submission of the shortlist of nominees by
the JBC?

RULING

Petitioners have legal standing because such requirement for this case was waived by the
Court.
Legal 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.

There is a justiciable issue

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.
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.

PROHIBITION UNDER SECTION 15, ARTICLE VII DOES NOT APPLY TO APPOINTMENTS
TO FILL A VACANCY IN THE SUPREME COURT OR TO OTHER APPOINTMENST TO THE
JUDICIARY.
Two constitutional provisions 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.

Justification of the Supreme Court:

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 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.
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.

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.
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.

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. 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. 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.

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) Commissions
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.

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, 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.

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 Punos retirement by May 17, 2010. It ignores the need to apply Section 4(1) to every

situation of a vacancy in the Supreme Court.

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.

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.

WRIT OF MANDAMUS DOES NOT LIE AGAINST THE JBC

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.