CASE DIGEST

De Castro v. JBC
Court Supreme Court
Citation 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
Date March 17, 2010
Petitioner G.R. No. 191002: ARTURO M. DE CASTRO, petitioner
G.R. No. 191032: JAIME N. SORIANO, petitioner,
G.R. No. 191057: PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA)
JUDICIAL AND BAR COUNCIL (JBC), respondent
A.M. No. 10-2-5-S:. IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF
THE CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY, ESTELITO
P. MENDOZA
G.R. No. 191149: JOHN G. PERALTA
G.R. No. 191342: ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern
Luzon), and ATTY. ROLAND B. INTING (IBP Governor-Eastern Visayas),
petitioners
G.R. No. 191420: PHILIPPINE BAR ASSOCIATION, INC.
Respondent JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL-
ARROYO
Ponente BERSAMIN, J.
Relevant topic Ban on midnight appointments does not apply to the Judiciary.
 Based on the literal interpretation and intent of the framers of the subject provisions
o 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.
o 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.
 Article VII, three (i.e., Section 14, Section 15, and Section 16) concern the appointing
powers of the President to the executive branch only.

CASE:
 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. 191057, a special civil action for mandamus, 4 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 led,
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

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De Castro v. 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.
 In G.R. No. 191032, 3 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.

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.
 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.
o 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 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.
 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.

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:

ISSUES-HELD:

1. Whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement.
YES

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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
First. The records of the deliberations of the Constitutional Commission reveal that the framers devoted
time to meticulously drafting, styling, and arranging the Constitution.
 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.
o 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.
o 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 President’s or Acting President’s term does not refer to the Members of the Supreme Court.
 V. Intent of the Constitutional Commission
o 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.
o 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.
o 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.

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

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Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section 15, 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.
o 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.
o 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.
o 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.

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.
 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 a 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.
 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:
o . . . . The Members of the Supreme Court . . . 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 xxx xxx

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 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.
o The question is not squarely before us at the moment, but it should lend itself to a deeper analysis if
and when circumstances permit.

II. The Judiciary Act

 Section 12 of the Judiciary Act of 1948 states:
o 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.
 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.
o 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.
 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.
o 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.
 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.
o 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.

III. Writ of mandamus does not lie against the JBC

 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.
 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.
o 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.

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o 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 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.
DISPOSITIVE:
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.
.

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