DE CASTRO v.
JBC making appointments within two months immediately before the next presidential
March 17, 2010 | Bersamin, J. | Art. VII, Sec. 15
PETITIONERS: Arturo De Castro, et. al
RESPONDENTS: Judicial Bar and Council and PGMA
SUMMARY: The compulsory retirement of Chief Justice Puno sparks
controversy because the vacancy is bound to occur just days after the upcoming
presidential elections. The Judicial Bar and Council remains conflicted on
whether the list of nominees should be submitted to the incumbent president
despite the midnight appointment ban expressed in Art VII, Sec. 15 of the
Constitution. The said provision seems to be in conflict with Art. VIII, Sec. 4
(1), which mandates that any vacancy in the SC shall be filled within 90 days
from the occurrence thereof. This is related with Art. VIII, Sec. 9, which states
that the appointment of SC Justices can only be made by the President upon the
submission of a list of at least three nominees by the JBC. The SC ruled that
Art VII, Sec. 15 does not extend to appointments in the Judiciary and that
Art. VIII, Sec. 4(1) mandates the President to fill the vacancy within 90
days from the occurrence of the vacancy. Thus, the JBC must submit the list
of nominees to the incumbent president to let her fulfill the constitutional
mandate on the appointment of SC justices.
DOCTRINE:
Art VII, 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.
“Midnight Appointment Ban”. The prohibition against presidential
appointments under Section 15, Article VII does not extend to appointments in
the Judiciary.
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.
The consolidated petitions 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
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 5 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 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.
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. (à all addressed in the
ruling)
ISSUE/s:
1. WoN petitioners have locus standi – YES
2. (topic) WoN the midnight appointment ban expressed in Sec. 15 of Art. VII
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 covers judicial appointments – NO
RULING:
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.
RATIO:
1. On Locus Standi: The petitioners assert their rights as citizen filing the
petition on behalf of the public who are directly affected by the issue of the
appointment. The question raised before the court is in fact of
transcendental importance. The court dispels all doubt to remove any
obstacle or obstruction to the resolution of the essential issuesquarely
presented. Standing is a peculiar concept to constitutional law because in
some cases, suits are no tbrought by parties who have been personally
injured by the operation of law or any other government act butby
concerned citizens, taxpayers or voters who actually sue in the public
interest. Petioners have demonstrated adequate interest in the outcome of
the controversy. The concern is of great doubt about the authority of the
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 great number of vacancies n the ranks of trial judges
throughout the country.
2. Reconciling the 2 provisions: 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. 2 constitutional provisions are
seemingly in conflict. Section 15, Article VII (Executive Department)
states: 2 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, Section 4 (1), Article VIII (Judicial Department),
provides: 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.
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 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.
3. Intent of the Constitutional Commission and the role of JBC: Given the
background and rationale for the prohibition in Section 15, Article VII,
we have no doubt that the Constitutional Commission confined the
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 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. The
intervention of the Judicial and Bar Council (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.

4. Reversing the Valenzuela doctrine (Court held differently here; that the
prohibition applies even to appointments to the judiciary): 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.

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