SEPARATE OPINION
- 4 votes
VELASCO, JR., J.:
I agree that there is no compelling reason for Associate Justice
Teresita J. Leonardo-de Castro (Justice Leonardo-de Castro) to inhibit
in the case at bar. Justice Leonardo-de Castro explained at length the
extent of her participation, or non-participation, in the closed door
meetings of the JBC when she was still a consultant thereof. She is
not privy to the decision of the JBC to approve the rule on the
clustering of nominees, much less to its implementation.
I likewise concur with the majority that the Judicial and Bar Council
(JBC) should be allowed to intervene in the present proceeding. The
nullification of the JBC's act of clustering the nominees for the
Sandiganbayan vacancies was a precondition before the Court could
have upheld the validity of the subject appointments. In fact, this
was where the Office of the Solicitor General (OSG) primarily
anchored its defenses. I cannot, therefore, agree that "[t]he
declaration of the Court that the clustering of nominees by the JBC
for simultaneous vacancies in the collegiate court is unconstitutional
was only incidental to its ruling. "1 On the contrary, it is, as it remains
to be, the very core of the controversy. It thus behooved this Court
to hear the counter-arguments of the JBC against the OSG' s
contention.
Beyond quibble then is that the JBC is clothed with legal interest to
take part in this case. The Court's attempt at curbing the august
body's practice is more than palpable in the language of the Decision.
The fallo of the adverted ruling reads:
WHEREFORE, premises considered, the Court DISMISSES the instant
Petition for Quo Warranto and Certiorari and Prohibition for lack of
merit. The Court DECLARES the clustering of nominees by the Judicial
and Bar Council UNCONSTITUTIONAL, and the appointments of
respondents Associate Justices Michael Frederick L. Musngi and
Geraldine Faith A Econg, together with the four other newly-
appointed Associate Justices of the Sandiganbayan as VALID. The
Court further DENIES the Motion for Intervention of the Judicial and
Bar Council in the present Petition, but ORDERS the Clerk of Court
En Banc to docket as a separate administrative matter the new rules
and practices of the Judicial and Bar Council which the Court took
cognizance of in the preceding discussion as Item No. 2: the deletion
or non-inclusion in JBC No. 2016-1, or the Revised Rules of the
Judicial and Bar Council, of Rule 8, Section I of JBC-009; and Item No.
3: the removal of incumbent Senior Associate Justices of the
Supreme Court as consultants of the Judicial and Bar Council,
referred to in pages 3 5-40 of this Decision. The Court finally DIRECTS
the Judicial and Bar Council to file its comment on said Item Nos. 2
and 3 within thirty (30) days from notice.
SO ORDERED.
I am amenable to the afore-quoted decretal portion of the
November 29, 2016 Decision but, regrettably, I cannot fully agree
with the following statement made in the discussion therein:2
The ruling of the Court in this case shall similarly apply to the
situation wherein there are closely successive vacancies in a
collegiate court, to which the President shall make appointments
on the same occasion, regardless of whether the JBC carried out
combined or separate application process/es for the vacancies. The
President is not bound by the clustering of nominees by the JBC and
may consider as one the separate shortlists of nominees
concurrently submitted by the JBC. (emphasis added)
This sweeping statement automatically makes an issue on how
future nominations and appointments are to be made. It is not a
mere pro hac vice ruling on the particular appointments in issue
herein, but precedent setting. Preferably, the Court ought to take up
the issue on whether or not the clustering of nominees is valid for
closely successive appointments when there is an actual justiciable
controversy on the matter. However, the Court's power of
supervision over the JBC,3 to my mind, permits us to grab the bull by
the horns and resolve the boundaries of the doctrine set herein to
serve as a guide not only to the JBC but also to the incumbent
President.
My misgivings on the above declaration stem from the fact that
separate application processes would yield varying number of
applicants and different persons applying. It would then be
erroneous to treat as one group the applicants who vied for different
posts. The shortlists for the posts vacated by Associate Justices Jose
P. Perez (Justice Perez) and Arturo D. Brion (Justice Brion) would
assist in illustrating this point:4
Shortlist for the position vacated Shortlist for the position
by Associate Justice Jose P. Perez vacated by Associate
Justice D. Brion
Reyes, Jose Jr. C. - 7 votes Carandang, Rosmari D. - 6
votes
Bruselas, Apolinario Jr. D. - 5 votes Bruselas, Apolinario Jr. D.
- 5 votes
Dimaampao, Japar B. - 5 votes Reyes, Jose Jr. C. - 4 votes
Martires, Samuel R. - 5 votes Dimaampao, Japar B. -4
votes
Reyes, Andres Jr. B. - 4 votes Lazaro-Javier, Amy C. - 4
votes
Tijam, Noel G.
Ventura-Jimeno, Rita
Linda S. - 4 votes
If I may convey some possible permutations and a few observations:
First, the ruling of majority permits the commingling of shortlists and
would automatically render Hon. Amy C. Lazaro-Javier, Associate
Justice of the Court of Appeals, a nominee for the position vacated
by Associate Justice Jose P. Perez even though she only applied for
the post vacated by Associate Justice Arturo D. Brion. This is an
anomaly since Hon. Lazaro-Javier only applied for the latter post.
Noteworthy is that the application process for the two vacancies was
separate and distinct. The JBC announced on August 4, 2016 that it
will be receiving applications and nominations for the post to be
vacated by Justice Perez until September 20, 2016. In contrast, the
call for applications and nominations for the post vacated by Justice
Brion was published on August 18, 2016, with the deadline set on
October 4, 2016.
From September 21, 2014 to October 4, 2016, the JBC was then only
receiving applications nominations for the Supreme Court post
vacated by Justice Brion. Had Hon. Lazaro-Javier filed her
application/nomination during this period, then she could not, by
any stretch of the imagination or legalese, be considered an
applicant, let alone a nominee, for the post vacated by Justice Perez.
Second, the wording of the decision may likewise result in the
appointment of one who did not get the necessary minimum
number of votes. Sec. 2, Rule 8 of JBC No. 2016-01, otherwise known
as the JBC Rules, provides:
RULES
VOTING REQUIREMENTS
Xxx
Sec. 2. Votes Required For Inclusion as Nominees. - For applicants to
be considered for nomination, they should obtain the affirmative
vote of at least four (4) Members of the Council.
In this case, Hon. Andres Reyes, Jr. applied for both vacant positions,
but obtained the required number of votes and was included in the
shortlist only for the post vacated by Justice Perez. There were 14
applicants/nominees for the said post as compared to the 17 for the
post vacated by Justice Brion. Competition may have been tougher
in the application process for Justice Brion's replacement, resulting
in Hon. Reyes not reaching the voting threshold. Whatever the
reason for his non-inclusion in the shortlist for Justice Brion's post
may be, the fact remains that he could not be appointed for the
same. He could only qualify as a nominee for the post vacated by
Justice Perez.
Third, precisely because there were two application processes, the
voting for the nominees was conducted separately. Thus, it was
possible for applicants/nominees for both vacant positions to be
voted upon twice by the same member of the JBC. The following
example provided by the JBC is telling:5
Table 1. Filled-up Ballot of Member X (where maximum no. of choice
is 8)
As couched, the November 29, 2016 Decision would affect the
manner by which the JBC members cast their votes: Should they be
entitled to only one ballot since the clustered shortlists are to be
considered as one comprehensive shortlist? Should they set a
guideline in determining the maximum number of choices according
to the number of vacancies to be filled?
These are legitimate concerns that would arise should the Court
sustain its Decision. These contingencies should have been clearly
addressed before we refrained from limiting the application of the
ruling pro hac vice and instead ruled that it may validly and similarly
be invoked in situations "wherein there are closely successive
vacancies in a collegiate court, xxx regardless of whether the JBC
carried out combined or separate application process/es for the
vacancies. "6
As a final word, the Court is well aware that the treatment of the
vacancies that resulted from the mandatory retirements of Justices
Perez and Brion is capable of repetition to those from the
retirements of Associate Justices Jose Catral Mendoza and
Bienvenido L. Reyes on July 6, 2017 and August 13, 2017,
respectively. We must then be prudent in resolving this collateral
issue before the Court is hounded by controversies surrounding the
legitimacy of the succeeding appointees to the Court.
The foregoing premises considered, I hereby register my vote to
PARTIALLY GRANT the instant Motion for Reconsideration-in-
Intervention. Although the unconstitutionality of the clustering is
sustained, the application of the doctrine should be limited to
simultaneous vacancies in collegiate courts, not to closely successive
vacancies thereto.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
Footnotes
1
Draft Resolution, p. 17.
2
November 29, 2016, p. 32
3
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. xxx
4
Motion for Reconsideration-in-Intervention, pp. 20-21.
5
Motion for Reconsideration-in-Intervention, pp. 20-21
6
November 29, 2016 Decision.
The Lawphil Project - Arellano Law Foundation
SEPARATE OPINION
LEONEN, J.:
I concur in the result insofar as the finding that respondents did not
gravely abuse their discretion in making appointments to the
Sandiganbayan as all six vacancies were opened for the first time. I
do not find any reasonable basis to cluster nominees in this case,
where the law created simultaneous new vacancies for a collegial
court. I agree with the ponencia that future vacancies for collegial
appellate courts and this Court, are not at issue in this case. Hence,
this Court should rule on the issues as it does not render advisory
opinions.
I likewise concur in the ponencia 's denial of the Motion for Inhibition
filed by the Judicial and Bar Council. This Court, in its Internal Rules,
provided the grounds1 on which a member of the Court must inhibit
himself or herself from participating in the resolution of the case,
and none of the cited reasons apply to the ponente. I am convinced
that there is no reason for the ponente to voluntarily inhibit herself
from resolving or participating in this case.
The ponente has adequately explained that she was neither privy nor
consulted by the Judicial and Bar Council on the move to cluster the
applicants to the newly created Sandiganbayan positions into six (6)
separate shortlists.2
I see no reason to doubt the ponente 's statement of impartiality. In
the years that I have worked alongside the ponente, I have personally
witnessed her unblemished character and unwavering commitment
to upholding the rule of law. Historically, her moral compass has
never waned. I have no reason to doubt her impartiality in this case.
However, the Judicial and Bar Council should be allowed to intervene
in the case. As the party who committed the act of clustering the
Sandiganbayan applicants-an act that was eventually declared
unconstitutional-the Judicial and Bar Council clearly has a legal
interest in the matter under litigation. Without the participation of
the Judicial and Bar Council, the doctrine in this case will only be
about the discretion of the President when there are simultaneous
vacancies in newly created divisions of a collegial court. This policy
should not extend to other vacancies caused by retirements in the
future.
Nonetheless, I reiterate that the Decision3 dated November 29, 2016
only affects collegial bodies such as the Sandiganbayan, when there
are simultaneous vacancies. When there are successive vacancies in
collegial courts, such as what happened in this Court, with the recent
retirement of Associate Justices Jose P. Perez (Associate Justice
Perez) and Arturo D. Brion (Associate Justice Brion), there may be
valid reasons for the submission of two (2) separate shortlists to the
President. However, again, that is not at issue in this case.
On November 16, 2016, the Judicial and Bar Council interviewed the
following candidates for the position of Supreme Court Associate
Justice to replace Associate Justice Perez, who compulsorily retired
on December 14, 2016:
1. RUEDA-ACOSTA, Persida V.
2. VENTURA-JIMENO, Rita Linda S.
3. APAO-ADLAWAN, RowenaM.
4. DIMAAMPAO, Japar B.
....
1. MARTIRES, Samuel R.
2. PARAS, Ricardo III., V. (also a candidate for the Sandiganbayan)
3. TIJAM, Noel G.4 (Emphasis in the original)
The following were also candidates for the position of Supreme
Court Associate Justice (to replace Associate Justice Perez), although
they were no longer interviewed because their previous interviews
were still valid:
1. BRUSELAS, Apolinario Jr., D.
2. CARANDANG, Rosmari D.
3. CRUZ, Stephen C.
4. DAWAY, Reynaldo B.
5. QUIROZ, Alex L.
6. REYES, Andres Jr., B.
7. REYES, Jose Jr., C.5 (Emphasis in the original)
On November 17, 2016, the Judicial and Bar Council interviewed the
following candidates for the position of Supreme Court Associate
Justice to replace Associate Justice Brion, who compulsorily retired
on December 29, 2016:
1. BORJA, Romulo V.
2. LAZARO-JAVIER, Amy C.
3. SAN PEDRO, Joseph P.6 (Emphasis in the original)
The following candidates were likewise considered for the position
vacated by Associate Justice Brion: 2. MENDOZA-ARCEGA, MARIA THERESA V.
1. APAO-ADLAWAN, RowenaM. 29 September 2015 (Tuesday) 3. QUIMBO, RODOLFO NOELS.
2. DIMAAMPAO, Japar B. 9:00 a.m. - 12:00 noon 4.
2:00
DIZON,
- 5:00MA.
p.m. ANTONIA EDITA CLARIDADES
3. MARTIRES, Samuel R. 1. CARILLO, Edwin M. 5.
1. SORIANO,
ALISUAG, Tita
ANDRES
B. BARTOLOME
4. PARAS, Ricardo III., V. 2. CRUZ, Reynaldo P. 3)
2. For
CASTILLO-MARIGOMEN,
the 18th Sandiganbayan Evangeline
AssociateC.Justice:
5. RUEDA-ACOSTA, Persida V. 3. SANTOS, Efren G. Your
3. CORPUS-MANALAC,
Excellency: Maryann E.
6. TIJAM, Noel G. Pursuant
4. CRUZ-MANGROBANG,
to Article VIII, Section
Ma. Celestina
9 of the Constitution,
C. the Judicial and
7. VENTURA-JIMENO, Rita Linda S. Bar Council (JBC) has the honor to submit the following nominations
.... 30 September 2015 (Wednesday) for the vacancy for the EIGHTEENTH ASSOCIATE JUSTICE of the
1. BRUSELAS, Apolinario Jr., D. 9:00 a.m. - 12:00 noon SANDIGANBAYAN,
2:00 - 5:00 p.m. with their respective votes:
2. CARANDANG, Rosmari D. 1. RAMOS, Renan E. 1. BAGUIO,
DE ALBAN, CELSO
IsaacO.R.
3. CRUZ, Stephen C. 2. DIZON, Ma. Antonia Edita C. 2. DE
FALCIS,
GUZMAN-ALVAREZ,
Rudiger II G. MA. TERESA E.
4. DAWAY, Reynaldo B. 3. POCO-DESLATE, Esperanza Isabel E. 3. FERNANDEZ,
FERNANDEZ, BERNELITO
Bemelito R.R.
5. QUIROZ, Alex L. 4. PANGANIBAN, ELVIRA DE CASTRO
6. REYES, Andres Jr., B. 01 October 2015 (Thursday) 5. SAGUN, FERNANDO JR. T.
7. REYES, Jose Jr., C.7 (Emphasis in the original) 9:00 a.m. - 12:00 noon 6.
2:00
TRESPESES,
- 5:00 p.m.ZALDY V.
On December 2, 2016, the Judicial and Bar Council forwarded to 1. GONZALES, Teodora R. 4)
1. For
JORGE-WAGAN,
the 19th Sandiganbayan
WilhelminaB. Associate Justice:
President Rodrigo Roa Duterte (President Duterte) the following 2. JACINTO, Bayani H. Your
2. POZON,
Excellency:
Benjamin T.
nominations for the position of Supreme Court Associate Justice (to 3. KALLOS, Robert E. Pursuant
3. REYES,to Felix
Article
P. VIII, Section 9 of the Constitution, the Judicial and
replace Associate Justice Perez): 4. TURINGAN-SANCHEZ, Rowena Bar Council (JBC) has the honor to submit the following nominations
One (1) week later, on December 9, 2016, the Judicial and Bar for the vacancy for the NINETEENTH ASSOCIATE JUSTICE of the
Council forwarded to President Duterte a second shortlist for the The following candidates had been previously interviewed by the SANDIGANBAYAN, with their respective votes:
position of Supreme Court Associate Justice (to replace Associate Judicial and Bar Council and were also considered for the six newly 1. GUANZON, FRANCES V.
Justice Brion) with the following nominees: created Sandiganbayan positions: 2. MACARAIG-GUILLEN, MARISSA
Although the two situations appear similar, in that the Judicial and None of the candidates applied for a particular Sandiganbayan 3. CRUZ, REYNALDO P.
Bar Council submitted two separate shortlists for the two vacancies division, yet on October 26, 2015, the Judicial and Bar Council 4. PAUIG, VILMA T.
in this Court and six separate shortlists for the six vacancies in the grouped them in six (6) separate shortlists to correspond to the six 5. RAMOS, RENAN E.
Sandiganbayan, the similarity ends there. The two shortlists for this (6) newly created Sandiganbayan divisions. The letters to Former 6. ROXAS, RUBEN REYNALDO G.
Court were for the two vacancies brought about by the mandatory President Benigno Simeon C. Aquino III (Former President Aquino) 5) For the 20th Sandiganbayan Associate Justice:
retirement of two Associate Justices on two separate dates. Further, read: Your Excellency:
applicants such as Romulo V. Borja, Amy C. Lazaro-Javier, and Joseph 1) For the 16th Sandiganbayan Associate Justice: Pursuant to Article VIII, Section 9 of the Constitution, the Judicial and
P. San Pedro opted to apply only for the position vacated by Your Excellency: Bar Council (JBC) has the honor to submit the following nominations
Associate Justice Brion, while the other candidates applied for both Pursuant to Article VIII, Section 9 of the Constitution, the Judicial and for the vacancy for the TWENTIETH ASSOCIATE JUSTICE of the
vacancies. Bar Council (JBC) has the honor to submit the following nominations SANDIGANBAYAN, with their respective votes:
In comparison, the applicants for the Sandiganbayan applied for all for the vacancy for the SIXTEENTH 1. MIRANDA, KARL B.
six vacancies. From September 28, 2015 to October 13, 2015, the ASSOCIATE JUSTICE of the SANDIGANBAYAN, with their respective 2. ATAL-PAÑO, PERPETUA
Judicial and Bar Council interviewed the following candidates for the votes: 3. BUNYI-MEDINA, THELMA
six newly created positions of Sandiganbayan Associate Justice: 2) For the 17th Sandiganbayan Associate Justice: 4. CORTEZ, LUISITO G.
28 September 2015 (Monday) Your Excellency: 5. FIEL-MACARAIG, GERALDINE C.
9:00 a.m. - 12:00 noon Pursuant
2:00 - 5:00
top.m.
Article VIII, Section 9 of the Constitution, the Judicial and 6. QUIMPO-SALE, ANGELENE MARY W.
1. BASCOS-SARABIA, Ma. Rita A. Bar
1. ALAMEDA,
Council (JBC)
Elmo
hasM.
the honor to submit the following nominations 7. JACINTO, BAYANI H.
2. BERNAD, Ana Celeste P. for
2. ALARCON-LEONES,
the vacancy for the Maria
SEVENTEENTH
Lourdes ASSOCIATE JUSTICE of the 6) For the 21st Sandiganbayan Associate Justice:
3. BITON, Lily V. SANDIGANBAYAN,
3. ALHAMBRA, Reynaldowith their
A. respective votes: Your Excellency:
4. CALO, Ofelia L. 1.
4. CORPUS-MANALAC,
ROMERO-MAGLAYA,MARYANNE. Rosanna Fe Pursuant to Article VIII,
- 6 votes
Section 9 of the Constitution, the Judicial and
Bar Council (JBC) has the honor to submit the following nominations
for the vacancy for the TWENTY-FIRST
ASSOCIATE JUSTICE of the SANDIGANBAYAN, with their respective
votes:
1. JORGE-WAGAN, WILHELMINA B.
2. ECONG, GERALDINE FAITH A.
3. ROMERO-MAGLAYA, ROSANNA FE
4. ZURAEK, MERIANTHE PACITA M.
5. ALAMEDA, ELMO M.
6. FERNANDEZ-BERNARDO, VICTORIA C.
7. MUSNGI, MICHAEL FREDERICK L.
Unlike the Sandiganbayan shortlists, some of the nominees for the
Supreme Court vacancies appeared in both shortlists submitted to
the President because they applied for both vacancies. This is a tacit
recognition that these nominees qualified for both vacancies in this
Court. This is contrary to the unique nature of the Sandiganbayan
shortlists in this case, where the nominees were limited to only one
shortlist each even if they qualified and applied for all of the
vacancies.
With the forthcoming mandatory retirement of Associate Justice
Bienvenido L. Reyes on July 6, 2017 and Associate Justice Jose C.
Mendoza on August 13, 201 7, this Court will have another set of
vacancies. By the time the two positions for Supreme Court
Associate Justice become vacant, the Judicial and Bar Council might
be composed of different members. The composition of the Judicial
and Bar Council regularly changes because of the term-sharing
arrangement practiced by the Senate and the House of
Representatives. The Chair of the House of Representatives
Committee on Justice sits as the Judicial and Bar Council ex-officio
member from January to June, while the Chair of the Senate
Committee on Justice and Human Rights takes over from July to
December. Because of the different dates of the vacancies, as well
as the possibly different composition of the Judicial and Bar Council,
two different shortlists should be submitted.
In its Motion for Reconsideration, the Judicial and Bar Council
explained that it merely followed Article VIII, Section 913 of the 1987
Constitution when it clustered into six separate shortlists the
nominees for the six simultaneous vacancies for Sandiganbayan
Associate Justice.14 It contended that clustering was a practical
solution meant to distinguish one shortlist from another and avoid
confusion.15
The Judicial and Bar Council16 was created under the 1987
Constitution. It was intended to be a fully independent constitutional
body functioning as a check-and-balance on the President's power
of appointment.
Before the existence of the Judicial and Bar Council, the executive
and legislative branches had the exclusive prerogative of appointing
members of the judiciary, subject only to confirmation by the
Commission on Appointments.
- 6 votes However, this appointment process
was highly susceptible
- 5 votes
to political pressure and partisan activities
and eventually prompted
- 5 votes
the need for a separate, competent, and
independent body to - 5recommend
votes to the President nominees to the
Judiciary.17 - 4 votes
The Judicial and Bar-Council
4 votesis not merely a technical committee that
12
evaluates the fitness- 4and
votes
integrity of applicants in the Judiciary. It is
a constitutional organ participating in the process that guides the
direction of the Judiciary. Its composition represents a cross section
of the legal profession, retired judges and Justices, and the Chief
Justice. More than a technical committee, it has the power to
examine the judicial philosophies of the applicants and make
selections, which it submits to the President. The President may have
the final discretion to choose, but he or she chooses only from that
list.
This is the complex relationship mandated by the sovereign through
the Constitution. It ensures judicial independence, checks and
balances on the Judiciary, and assurance for the rule of law.
In the proper actual case, the exact metes and bounds of the
discussion of the Judicial and Bar Council can be determined. Here,
however, the President did not abuse his discretion when he decided
that there was no reason to cluster the applicants for the
Sandiganbayan vacancies.
As a collegial court, the Sandiganbayan seats members who equally
share power and sit in divisions of three (3) members each. The
numerical designation of each division only pertains to the seniority
or order of precedence based on the date of appointment. The Rule
on Precedence is in place primarily for the orderly functioning of the
Sandiganbayan, as reflected in Rule II, Section 1 of the Revised
Internal Rules of the Sandiganbayan:
Section 1. Composition of the Court and Rule on Precedence –
(a) Composition - The Sandiganbayan is composed of a Presiding
Justice and fourteen (14) Associate Justices appointed by the
President of the Philippines.
(b) Rules on Precedence - The Presiding Justice shall enjoy
precedence over the other members of the Sandiganbayan in all
official functions. The Associate Justices shall have precedence
according to the order of their appointments.
(c) The Rule on Precedence shall apply:
1) In the seating arrangement;
2) In the choice of office space, facilities and equipment,
transportation and cottages;
(d) The Rule on Precedence shall not be observed:
1) In social and other non-official functions.
2) To justify any variation in the assignment of cases, amount of
compensation, allowances or other forms of remuneration.
In single courts such as the regional trial courts or municipal trial
courts, each branch carries its own station code and acts separately
and independently from other co-equal branches. On the other
hand, the Sandiganbayan divisions, as part of a collegial court, do not
possess similar station codes. This is because there is no discernible
difference between the divisions, and decisions are made not by one
justice alone but by a majority or all of the members sitting in a
division or En Banc. This reinforces the collegial nature of the
Sandiganbayan: one that is characterized by the equal sharing of
authority among the members.
Additionally, in single courts, applicants may apply for each available
vacancy; thus, to find the same applicant in shortlists for vacancies
in different single courts is common. On the other hand, applicants
in collegial courts apply only once even when there are simultaneous
vacancies because among divisions in a collegial court, there is no
substantial difference to justify the creation of separate shortlists or
clusters for each vacancy.1âwphi1
I am of the view that Former President Aquino did not commit grave
abuse of discretion in disregarding the shortlists submitted to him by
the Judicial and Bar Council for the simultaneous new vacancies and
in treating all six shortlists as one from which he could choose the
Sandiganbayan Justices. I reserve judgment on future vacancies in
any collegial appellate court. This Court is unanimous on the scope
of this judgment.
On the issue of this Court's supervision over the Judicial and Bar
Council, I acknowledge that this Court has already taken cognizance
and docketed as separate matters the deletion of Rule 8, Section 1
of JBC-009 and the removal of incumbent Supreme Court Senior
Associate Justices as consultants of the Judicial and Bar Council.18
However, I reiterate that the Judicial and Bar Council is not
mandated to submit its revised internal rules to this Court for
approval. Jardeleza v. Sereno19 emphasized that this Court's power
of judicial review is only to ensure that rules are followed.20 It has
neither the power to lay down these rules nor the discretion to
modify or replace them.21
The Internal Rules of the Judicial and Bar Council is necessary and
incidental to the function conferred to it by the Constitution. The
Constitution may have provided the qualifications of the members
of the Judiciary, but it has given the Judicial and Bar Council the
latitude to promulgate its own set of rules and procedures to
effectively ensure its mandate. This Court cannot meddle in the
Judicial and Bar Council's internal rules and policies. To do so would
be an unconstitutional affront to the Judicial and Bar Council's
independence.
ACCORDINGLY, I concur only in the result.
MARVIC M.V.F. LEONEN
Associate Justice
SEPARATE OPINION
CAGUIOA, J.:
I am filing this separate opinion to clarify my position on the final
disposition of the case wherein the Court, in dismissing the Petition
for Quo Warranto and Certiorari, declared the clustering of
nominees by the Judicial and Bar Council (JBC) unconstitutional and
the appointments of Associate Justices Michael Frederick L. Musngi
and Ma. Geraldine Faith A. Econg, together with the four other
newly-appointed Associate Justices of the Sandiganbayan, as valid.
As explained below, I maintain my position that the dismissal of the
Petition and the upholding of the appointments of the six newly-
appointed Associate Justices of the Sandiganbayan are in order. It is,
however, the ruling on the unconstitutionality of the questioned act
of the JBC that I am espousing a separate view.
In the Decision dated November 29, 2016, I joined the Concurring
Opinion of Justice Marvic M.V.F. Leonen. Justice Leonen stated:
I concur in the result in so far as finding that the respondents did not
gravely abuse their discretion in making appointments to the
Sandiganbayan, considering that all six vacancies were opened for
the first time. I disagree that we make findings as to whether the
Judicial and Bar Council gravely abused its discretion considering
that they were not impleaded and made party to this case. Even for
the Judicial and Bar Council, a modicum of fairness requires that we
should have heard them and considered their arguments before we
proceed to exercise any degree of supervision as they exercise their
constitutionally mandated duties.1
After the JBC filed on December 27, 2016 its Motion for
Reconsideration (with Motion for the Inhibition of the Ponente) and
on February 6, 2017 its Motion for Reconsideration-in-Intervention
(Of the Decision dated 29 November 2016), the majority of the Court
resolved to grant its motion/prayer for intervention and to deny the
Motion for the Inhibition of the Ponente. To this extent, I concur with
the Court's Resolution.
On the motion for inhibition, the ponente is in the best position to
determine whether her involvement with the JBC justifies her
possible inhibition in this case. The ponente has found no basis for
her inhibition, and I accept her decision unqualifiedly.
On the JBC's motion to intervene, I reiterate the position taken by J.
Leonen, to which I concurred, that the JBC should be allowed to
intervene. To be sure, the JBC is not an ordinary body. It was created
by no less than our Constitution, and given the constitutional
mandate of recommending to the President the nominees to every
vacancy in the judiciary.2 Hence, since the JBC' s very action has been
declared by the Court unconstitutional, the JBC clearly has a legal
interest in the matter in litigation and is so situated as to be
adversely affected by the disposition of the Court.3 Everyone
deserves a day in court. The JBC is no exception.
The very purpose and singular function of the JBC is involved in the
Petition as the petitioners' reliefs are grounded on the simple
formulation that the President's act of appointing Justices Musngi
and Econg was made in violation of Section 9, Article VIII of the
Constitution. This, in turn, is premised on the petitioners' belief that
the President could not appoint Justices for any given position (in
specific reference to the 16th and 21st stations/ Associate Justice
positions) outside of the list of nominees that had been clustered by
the JBC for each of the stations/ Associate Justice positions.
In plain terms, the Court is confronted with the proper interpretation
of Section 9, Article VIII of the Constitution, to wit:
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.
x x xx
To my mind, the pointed question to be resolved is this: "If
respondent President Benigno Simeon C. Aquino III (President
Aquino) had made his appointments of the six new Associate Justices
of the Sandiganbayan based on the six separate lists prepared by the
JBC, meaning one appointment per list, would he have violated the
Constitution?"
If the answer is in the affirmative, then the action of the JBC would
be unconstitutional. Inversely, if the answer is in the negative,
meaning the Court upholds as constitutional the appointments
made following the clustering by the JBC, then that would, in turn,
mean that the JBC had acted pursuant to its mandate under the
Constitution.
To reiterate, Section 9, Article VIII of the Constitution provides:
Sec. 9. The Members of the Supreme Court and judges of lower
courts shall be appointed by the President from a list of at least three
nominees prepared by the Judicial and Bar Council for every vacancy.
Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments
within ninety days from the submission of the list.
President Aquino was presented with six lists to fill up the six
vacancies in the Sandiganbayan. Each list has at least three
nominees. An appointment coming from each of the six lists would
be in keeping with the Constitutional provision. I cannot see it
otherwise. Thus, had President Aquino picked one from each of the
six lists prepared by the JBC, I would not have declared his action
unconstitutional.
My basis is the plain language of the above Constitutional provision
which mandates the JBC to recommend nominees to any vacancy in
the judiciary-to prepare a list of at least three nominees for every
vacancy.4
So long as the grouping of at least three nominees for every vacancy
by the JBC did not impinge on the President's appointing power,
there is, in my view, no violation of the Constitution. Thus, I cannot
view as grave abuse of discretion the act of the JBC in adopting the
six lists it came up with following its "textualist approach of
constitutional interpretation".
In the same vein, that President Aquino chose to disregard JBC's
clustering, and considered all the 3 7 nominees named in the six lists,
is likewise "textually compliant" with Section 9, Article VIII of the
Constitution (i.e., because there are at least three nominees for each
of the six Associate Justice positions).5 For this reason, I cannot find
the act of President Aquino as constituting grave abuse of discretion.
In fine, I find nothing unconstitutional in the questioned action of the
JBC-in the same manner that I find nothing unconstitutional in the
act of President Aquino in disregarding the clustering done by the
JBC, and in choosing Associate Justices for each of the vacancies
"outside" of the "clustered" lists provided by the JBC.
ACCORDINGLY, I vote to RECONSIDER the Decision dated November
29, 2016 and to DELETE from the dispositive portion the declaration
that "the clustering of nominees by the Judicial and Bar Council [as]
UNCONSTITUTIONAL."