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.

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.