Documente Academic
Documente Profesional
Documente Cultură
——o0o——
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* EN BANC.
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MARLOU B. UBANO;
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Presidency; Appointments; Midnight Appointment Ban;
Statutory Construction; It is unfortunate that the ponencia chiefly
relies on the trivialities of draftsmanship style in arriving at a
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Same; Same; Same; Same; Casus Omissus; The proper
interpretation therefore of a Constitution depends more on how it
was understood by the people adopting it than in the framers’
understanding thereof; The people may not be of the same caliber
as Justice Regalado, but they simply could not read into Section
15 something that is not there—casus omissus pro omisso
habendus est.—Providentially, jurisprudence is replete with
guiding principles to ascertain the true meaning of the
Constitution when the provisions as written appear
unclear and the proceedings as recorded provide little
help: While it is permissible in this jurisdiction to consult the
debates and proceedings of the constitutional convention in order
to arrive at the reason and purpose of the resulting Constitution,
resort thereto may be had only when other guides fail as said
proceedings are powerless to vary the terms of the Constitution
when the meaning is clear. Debates in the constitutional
convention “are of value as showing the views of the individual
members, and as indicating the reasons for their votes, but they
give us no light as to the views of the large majority who did not
talk, much less of the mass of our fellow citizens whose votes at
the polls gave that instrument the force of fundamental law. We
think it safer to construe the constitution from what appears upon
its face.” The proper interpretation therefore depends more on
how it was understood by the people adopting it than in the
framers’ understanding thereof. (underscoring supplied) The clear
import of Section 15 of Article VII is readily apparent. The people
may not be of the same caliber as Justice Regalado, but they
simply could not read into Section 15 something that is not there.
Casus omissus pro omisso habendus est.
Same; Same; Same; Considering that Section 15 of Article VII
is an express limitation on the President’s power of appointment,
the running of the 90-day period is deemed suspended during the
period of the ban which takes effect only once every six years.—In
the present case, there can only arise a legal impossibility when
the JBC list is submitted or the vacancy occurred during the
appointments ban and the 90-day period would expire before the
end of the appointments ban, in which case the fresh 90-day
period should start to run at noon of June 30. This was the factual
antecedent respecting the trial court judges involved in
Valenzuela. There also arises a legal impossibility when the list is
submitted or the vacancy occurred prior to the ban and no
appointment was made before the ban starts,
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rendering the lapse of the 90-day period within the period of the
ban, in which case the remaining period should resume to run at
noon of June 30. The outgoing President would be released from
non-fulfillment of the constitutional obligation, and the duty
devolves upon the new President. Considering also that Section
15 of Article VII is an express limitation on the President’s power
of appointment, the running of the 90-day period is deemed
suspended during the period of the ban which takes effect only
once every six years.
Same; Same; Judicial and Bar Council; The ponencia’s
interpretation that the Judicial and Bar Council (JBC) has until
17 May 2010, at the latest, within which to submit to the President
the list of nominees for the position of Chief Justice is absurd as it
takes the application and nomination stages in isolation from the
whole appointment process—for the ponencia, the filling of the
vacancy only involves the President, and the JBC was not
considered when the period was increased from 60 days to 90 days.
—The ponencia also holds that the JBC has until May 17, 2010, at
the latest, within which to submit to the President the list of
nominees for the position of Chief Justice. It declares that the
JBC should start the process of selecting the candidates to fill the
vacancy in the Supreme Court before the occurrence of the
vacancy, explaining that the 90-day period in the proviso, “Any
vacancy shall be filled within ninety days from the occurrence
thereof,” is addressed to the President, not to the JBC. Such
interpretation is absurd as it takes the application and
nomination stages in isolation from the whole appointment
process. For the ponencia, the filling of the vacancy only involves
the President, and the JBC was not considered when the period
was increased from 60 days to 90 days. The sense of the Concom
is the exact opposite. The flaw in the reasoning is made more
evident when the vacancy occurs by virtue of death of a member
of the Court. In that instance, the JBC could never anticipate the
vacancy, and could never submit a list to the President before the
90-day period.
Same; Same; Supreme Court; It is ironic for the ponencia to
recognize that the President may need as much as 90 days of
reflection in appointing a member of the Court, and yet abhor the
idea of an acting Chief Justice in the interregnum as provided for
by law, confirmed by tradition, and settled by jurisprudence to be
an internal matter—the express allowance of a 90-day period of
vacancy rebuts any policy argument on the necessity to avoid a
vacuum of even a single day in the position of an appointed Chief
Justice.—It is ironic
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for the ponencia to state on the one hand that the President would
be deprived of ample time to reflect on the qualifications of the
nominees, and to show on the other hand that the President has,
in recent history, filled the vacancy in the position of Chief Justice
in one or two days. It is ironic for the ponencia to recognize that
the President may need as much as 90 days of reflection in
appointing a member of the Court, and yet abhor the idea of an
acting Chief Justice in the interregnum as provided for by law,
confirmed by tradition, and settled by jurisprudence to be an
internal matter. The express allowance of a 90-day period of
vacancy rebuts any policy argument on the necessity to avoid a
vacuum of even a single day in the position of an appointed Chief
Justice.
ame; Same; Same; As a member of the Court, I strongly take
exception to the ponencia’s implication that the Court cannot
function without a sitting Chief Justice.—As a member of the
Court, I strongly take exception to the ponencia’s
implication that the Court cannot function without a
sitting Chief Justice. To begin with, judicial power is vested in
one Supreme Court and not in its individual members, much less
in the Chief Justice alone. Notably, after Chief Justice Puno
retires, the Court will have 14 members left, which is more than
sufficient to constitute a quorum. The fundamental principle in
the system of laws recognizes that there is only one Supreme
Court from whose decisions all other courts are required to take
their bearings. While most of the Court’s work is performed by its
three divisions, the Court remains one court—single, unitary,
complete and supreme. Flowing from this is the fact that, while
individual justices may dissent or only partially concur, when the
Court states what the law is, it speaks with only one voice. The
Court, as a collegial body, operates on a “one member, one vote”
basis, whether it sits en banc or in divisions. The competence,
probity and independence of the Court en banc, or those of the
Court’s Division to which the Chief Justice belongs, have never
depended on whether the member voting as Chief Justice is
merely an acting Chief Justice or a duly appointed one.
NACHURA, J., Separate Opinion:
Judicial Review; The consolidated petitions should be
dismissed, because they do not raise an actual case or controversy
ripe for judicial determination.—After careful perusal of the
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BRION, J., Separate Opinion:
Judicial Review; Locus Standi; Jurisprudence is replete with
precedents on the liberal appreciation of the locus standi rule on
issues that are of transcendental concern to the nation, and the
petitioners very well qualify under these rulings.—I completely
agree with the ponencia’s ruling on the parties’ standing, their
locus standi, to bring their petitions and interventions in their
capacities as citizens and lawyers who stand to be affected by our
ruling as lawyers or by the impact of our ruling on the nation and
the all-important electoral exercise we shall hold in May 2010.
Jurisprudence is replete with precedents on the liberal
appreciation of the locus standi rule on issues that are of
transcendental concern to the nation, and the petitioners very
well qualify under these rulings. In this sense, locus standi is not
a critical issue in the present case. In fact, the concern voiced out
during the Court’s deliberations, is more on how participation can
be limited to those who have substantial contributions, through
their submissions, to the resolution of the grave issues before the
Court.
Same; Same; I disagree with the ponencia’s ruling on
justiciability as I believe some of the petitions before us do not
reach the required level of justiciability; others, however, qualify so
that my disagreement with the lack of justiciability of some of the
petitions need not hinder the Court’s consideration of the main
issue at hand.—While the rule on locus standi can be relaxed, the
rule on the need for an actual justiciable case that is ripe for
adjudication addresses a different concern and cannot be similarly
treated. I disagree with the ponencia’s ruling on
justiciability as I believe some of the petitions before us do
not reach the required level of justiciability; others,
however, qualify as discussed below so that my
disagreement with the lack of justiciability of some of the
petitions need not hinder the Court’s consideration of the
main issue at hand. The basic requisite before this Court can
rule is the presence of an actual case calling for the exercise of
judicial power. This is a requirement that the Constitution itself
expressly imposes; in granting the Court judicial power and in
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691
Same; Same; An administrative matter that is entered in the
Court’s docket is either an administrative case (A.C.) or an
administrative matter (A.M.) submitted to the Court for its
consideration and action pursuant to its power of supervision; An
A.C. involves disciplinary and other actions over members of the
Bar, based on the Court’s supervision over them arising from the
Supreme Court’s authority to promulgate rules relating to the
admission to the practice of law and to the Integrated Bar; An
A.M. is a matter based on the Supreme Court’s power of
supervision—under Section 6, Article VIII, this refers to the
Court’s administrative supervision over all courts and the
personnel thereof, and, under Section 8, it refers to its supervision
over the JBC.—An administrative matter that is entered in the
Court’s docket is either an administrative case (A.C.) or an
administrative matter (A.M.) submitted to the Court for its
consideration and action pursuant to its power of supervision. An
A.C. involves disciplinary and other actions over members of the
Bar, based on the Court’s supervision over them arising from the
Supreme Court’s authority to promulgate rules relating to the
admission to the practice of law and to the Integrated Bar. Closely
related to A.C. cases are the Bar Matter (B.M.) cases particularly
involving admission to the practice of law. An A.M. is a matter
based on the Supreme Court’s power of supervision: under Section
6, Article VIII, this refers to administrative supervision over all
courts and the personnel thereof; under Section 8, it refers to its
supervision over the JBC. In using an administrative matter as
its medium, the Mendoza petition cites as basis the effect of a
complete election ban on judicial appointments (in view of the
already high level of vacancies and the backlog of cases) and
submits this as an administrative matter that the Court, in the
exercise of its supervision over the Judiciary, should act upon. At
the same time, it cites the “public discourse and controversy” now
taking place because of the application of the election ban on the
appointment of the Chief Justice, citing in this regard the very
same reasons mentioned in Valenzuela about the need to resolve
the issue and avoid the recurrence of conflict thereon between the
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Executive and the Judiciary on the matter; and the need to “avoid
any possible polemics concerning the matter.” The petition
mentions as well that the Court addressed the election ban issue
in Valenzuela as an A.M. case, and apparently takes the lead from
this decided A.M. matter.
692
Same; Same; Declaratory Relief; The Supreme Court’s
supervision over the Judicial and Bar Council (JBC), the latter’s
need for guidance, and the existence of an actual controversy that
Soriano and Tolentino cite, save the Mendoza petition from being
one for declaratory relief, which petition is originally cognizable by
the Regional Trial Court, not by this Court.—Given the justiciable
Soriano and Tolentino petitions that directly address the JBC and
its activities, the impact of the above-outlined realities on the
grant of a writ of prohibition, and the undeniable supervision that
the Supreme Court exercises over the JBC as well as its role as
the interpreter of the Constitution—sufficiently compelling
reason exists to recognize the Mendoza petition as a
properly filed A.M. petition that should fully be heard in these
proceedings to fully ventilate the supervisory aspect of the
Court’s relationship with the JBC and to reflect, once
again, how this Court views the issues first considered in
Valenzuela. The Court’s supervision over the JBC, the latter’s
need for guidance, and the existence of an actual controversy that
Soriano and Tolentino cite, save the Mendoza petition from being
one for declaratory relief, which petition is originally cognizable
by the Regional Trial Court, not by this Court.
Same; Same; Both by law and history, the Chief Justice has
always been a Member of the Court—although, as a primus inter
pares—appointed by the President together with every other
Associate Justice. For this reason, we should dismiss the Soriano
petition for lack of merit.—The use of the generic term “Members
of the Supreme Court” under Section 9, Article VIII in delineating
the appointing authority under the 1987 Constitution, is not new.
This was the term used in the present line of Philippine
Constitutions, from 1935 to 1987, and the inclusion of the Chief
Justice with the general term “Member of the Court” has never
been in doubt. In fact, Section 4(1) of the present Constitution
itself confirms that the Chief Justice is a Member of the Court
when it provides that the Court “may sit en banc or, in its
discretion, in divisions of three, five, or seven Members.” The Chief
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sit in the Court. Thus, both by law and history, the Chief Justice
has always been a Member of the Court—although, as a primus
inter pares—appointed by the President together with every other
Associate Justice. For this reason, we should dismiss the Soriano
petition for lack of merit.
Same; Same; Appointments; Judiciary; From their wordings,
urgency leaps up from Section 4(1) of Article VIII of the
Constitution while no such message emanates from Section 9—in
the latter the Judicial and Bar Council (JBC) appears free to
determine when a submission is to be made, obligating the
President to issue appointments within 90 days from the
submission of the JBC list; Section 9 may offer more flexibility in
its application as the mandate for the President is to issue
appointments within 90 days from submission of the list, without
specifying when the submission should be made.—Section 15 on
its face disallows any appointment in clear negative terms (shall
not make) without specifying the appointments covered by the
prohibition. From this literal reading springs the argument that
no exception is provided (except the exception found in Section 15
itself) so that even the Judiciary is covered by the ban on
appointments. On the other hand, Section 4(1) is likewise very
clear and categorical in its terms: any vacancy in the Court shall
be filled within 90 days from its occurrence. In the way of Section
15, Section 4(1) is also clear and categorical and provides no
exception; the appointment refers solely to the Members of the
Supreme Court and does not mention any period that would
interrupt, hold or postpone the 90-day requirement. Section 9 may
offer more flexibility in its application as the mandate for the
President is to issue appointments within 90 days from
submission of the list, without specifying when the submission
should be made. From their wordings, urgency leaps up from
Section 4(1) while no such message emanates from Section 9; in
the latter the JBC appears free to determine when a submission
is to be made, obligating the President to issue appointments
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within 90 days from the submission of the JBC list. From this
view, the appointment period under Section 9 is one that is
flexible and can move. Thus, in terms of conflict, Sections 4(1) and
Sections 15 can be said to be directly in conflict with each other,
while a conflict is much less evident from a comparison of Sections
9 and 15. This conclusion answers the verba legis argument of the
Peralta petition that when the words or terms of a statute or
provision is clear and unambiguous, then no interpretation is
necessary as the
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that created by the period provided for the lower court under
Section 9.
Same; Same; Same; Same; Stare Decisis; The stability of
judgments is indeed a glue that the Judiciary and the litigating
public cannot do without if we are to have a working and stable
justice system.—I find it interesting that Peralta largely justifies
his position that the JBC should now be prohibited from
proceeding with the nomination process based on Valenzuela as
the prevailing rule that should be followed under the principle of
stare decisis. Tolentino apparently misappreciates the reach and
real holding of Valenzuela, as explained and clarified above. A
ruling involving the appointment of lower court judges under
Section 9, Article VIII cannot simply be bodily lifted and applied
in toto to the appointment of Members of the Supreme Court
under Section 4(1) of the same Article. Because of his
misappreciation, Tolentino is likewise mistaken in his appeal to
the principle of stare decisis. The stability of judgments is indeed
a glue that the Judiciary and the litigating public cannot do
without if we are to have a working and stable justice system.
Because of this role, the principle is one that binds all courts,
including this Court, and the litigating public. The principle,
however, is not open-ended and contains its own self-limitations;
it applies only to actions in all future similar cases and to none
other. Where ample room for distinction exists, as in this case,
then stare decisis does not apply.
Same; Same; Same; Same; Same; Another aspect of stare
decisis that must be appreciated is that Supreme Court rulings are
not written in stone so that they will remain unerased and
applicable for all times.—Another aspect of stare decisis that must
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one and all, that the terms of the Valenzuela ruling, if truly
applicable even to appointments to this Court, is not written in
stone and remains open for review by this Court.
Same; Same; Same; Same; Same; Completeness has a
heightened meaning when the missing Member is the head of the
Judiciary and the Court in the person of the Chief Justice.—
Valenzuela rests on the reasoning that the evil that Section 15
seeks to remedy—vote buying, midnight appointments and
partisan reasons to influence the results of the election—is so
pervasive so that the Section 15 ban should prevail over
everything else. The Court, however, forgot in some statements in
this case that hand in hand with Section 15 is Section 4(1) where
the framers also recognized, in clear and absolute terms, that a
vacancy in the Court should be filled up because of the importance
of having a Supreme Court with its full and complete
membership. Completeness has a heightened meaning when the
missing Member is the head of the Judiciary and the Court in the
person of the Chief Justice.
Same; Same; Same; Same; Same; What Valenzuela failed to
consider, because it was looking at the disputed provisions from
the prism of two Regional Trial Court (RTC) judges, is that the
reasons for the application of Section 15, Article VII may not at all
exist in appointments to the Supreme Court.—What Valenzuela
failed to consider, because it was looking at the disputed
provisions from the prism of two RTC judges, is that the reasons
for the application of Section 15, Article VII may not at all exist in
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selection process and submit its list of nominees in time for the
incumbent President or her successor to fill up the vacancy within
the period required by the Constitution. Alternatively, assuming
that an actual controversy has not yet developed as to warrant
action on the petitions filed in this case, the Court has the
authority, as an incident of its power of supervision over the JBC,
to see to it that the JBC faithfully executes its duties as the
Constitution requires of it.
Same; Same; Same; Same; Same; While the President can
freely choose to appoint any person who meets the basic
qualifications for a position in the Executive Department, he does
not have such freedom of choice when it comes to appointments in
the judiciary—in the latter case, the Constitution provides in
Section 9 of Article VIII that the President can choose his
appointee only from a Judicial and Bar Council (JBC) short list of
its nominees.—Citing “In Re: Appointments dated March 30, 1998
of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as
Judges of the Regional Trial Court of Branch 62, Bago City and of
Branch 24, Cabanatuan City,” 298 SCRA 408 (1998), the
oppositors claim that the ban on midnight appointments applies
to the judiciary. After examining the reasons for the two
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the period of the ban “to buy votes” and commit “similar evils” like
denying the incoming President the opportunity to consider other
appointees in the light of his new policies, a point former
President Diosdado Macapagal made in Aytona v. Castillo, 4
SCRA (1962). The fact, however, is that while the President can
freely choose to appoint any person who meets the basic
qualifications for a position in the Executive Department, he does
not have such freedom of choice when it comes to appointments in
the judiciary. In the latter case, the Constitution provides in
Section 9 of Article VIII that the President can choose his
appointee only from a JBC short list of its nominees.
Same; Same; Same; Same; Same; The idea that the outgoing
incumbent President can take advantage of her appointment of a
Chief Justice to buy votes in the coming elections is utterly
ridiculous—she has no control over the Judicial and Bar Council’s
(JBC’s) actions.—In reality, a President’s choice of Chief Justice is
in fact first a choice of the JBC before it is that of the President.
Easily there should at least be 20,000 lawyers who are 40 years of
age and have 15 years of law practice of some kind who could
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qualify for Chief Justice. Yet, the President can choose only from
a list of three, four, or five lawyers that the JBC draws up for him.
Consequently, the idea that the outgoing incumbent President
can take advantage of her appointment of a Chief Justice to buy
votes in the coming elections is utterly ridiculous. She has no
control over the JBC’s actions.
Same; Same; Same; Same; Same; Separation of Powers; The
Supreme Court that the Chief Justice heads is not a support
agency under the President; The proposition that a Chief Justice
will always be beholden to the President who appoints him is a
myth.—The idea that the incoming President should have the
opportunity to choose a Chief Justice who will support his policies
does not also make sense. The Supreme Court that the Chief
Justice heads is not a support agency under the President. One of
the functions of the Supreme Court is to provide a Constitutional
check on abuses of the Executive Department. The proposition
that a Chief Justice will always be beholden to the President who
appoints him is a myth. Former President Estrada appointed
Chief Justice Hilario G. Davide, Jr. who presided over his
impeachment and administered the oath to the incumbent
President at the heels of EDSA II while President Estrada still
sat in Malacañang. Chief Justices Artemio V. Pangani-
701
702
BERSAMIN, J.:
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. Even before the
event actually happens, it is giving rise to many legal
dilemmas. May the incumbent President appoint his
successor, 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? What is the relevance of Section 4
(1), Article VIII (Judicial Department) of the Constitution,
which provides that any vacancy in the Supreme Court
shall be filled within 90 days from the occurrence thereof,
to the matter of the appointment of his successor? May the
Judicial and Bar Council (JBC) resume the process of
screening the candidates nominated or being considered to
succeed Chief Justice Puno, and submit the list of
nominees to the incumbent President even during the
period of the prohibition under Section 15, Article VII?
Does mandamus lie to compel the submission of the
shortlist of nominees by the JBC?
Precís of the Consolidated Cases
Petitioners Arturo M. De Castro and John G. Peralta
respectively commenced G.R. No. 1910021 and G.R. No.
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703
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704
A precedent frequently cited is In Re Appointments
Dated March 30, 1998 of Hon. Mateo A. Valenzuela and
Hon. Placido B. Vallarta as Judges of the Regional Trial
Court of Branch 62, Bago City and of Branch 24,
Cabanatuan City, respectively (Valenzuela),7 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.
In G.R. No. 191002, De Castro submits that the
conflicting opinions on the issue expressed by legal
luminaries—one side holds that the incumbent President is
prohibited from making appointments within two months
immediately before the coming presidential elections and
until the end of her term of office as President on June 30,
2010, while the other insists that the prohibition applies
only to appointments to executive positions that may
influence the election and, anyway, paramount national
interest justifies the appointment of a Chief Justice during
the election ban—has impelled the JBC to defer the
decision to whom to send its list of at least three nominees,
whether to the incumbent President or to her successor.8
He opines that the JBC is thereby arrogating unto itself
“the judicial function that is not conferred upon it by the
Constitution,” which has limited it to the task of
recommending appointees to the Judiciary, but has not
empowered it to “finally resolve constitutional questions,
which is the power vested only in the Supreme Court under
the Constitution.” As such, he contends that the JBC acted
with grave abuse of discretion in deferring the submission
of the list of nominees to the President; and that a “final
and definitive resolution of the constitutional questions
raised above would diffuse (sic) the tension in the legal
community that would go a long way to keep and maintain
stability in the judiciary and the political system.”9
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705
In G.R. No. 191032, Soriano offers the view that the
JBC committed a grave abuse of discretion amounting to
lack or excess of its jurisdiction when it resolved
unanimously on January 18, 2010 to open the search,
nomination, and selection process for the position of Chief
Justice to succeed Chief Justice Puno, because the
appointing authority for the position of Chief Justice is the
Supreme Court itself, the President’s authority being
limited to the appointment of the Members of the Supreme
Court. Hence, the JBC should not intervene in the process,
unless a nominee is not yet a Member of the Supreme
Court.10
For its part, PHILCONSA observes in its petition in
G.R. No. 191057 that “unorthodox and exceptional
circumstances spawned by the discordant interpretations,
due perhaps to a perfunctory understanding, of Sec. 15,
Art. VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII of the
Constitution” have bred “a frenzied inflammatory legal
debate on the constitutional provisions mentioned that has
divided the bench and the bar and the general public as
well, because of its dimensional impact to the nation and
the people,” thereby fashioning “transcendental questions
or issues affecting the JBC’s proper exercise of its
“principal function of recommending appointees to the
Judiciary” by submitting only to the President (not to the
next President) “a list of at least three nominees prepared
by the Judicial and Bar Council for every vacancy” from
which the members of the Supreme Court and judges of the
lower courts may be appointed.”11 PHILCONSA further
believes and submits that now is the time to revisit and
review Valenzuela, the “strange and exotic Decision of the
Court en banc.”12
Peralta states in his petition in G.R. No. 191149 that
mandamus can compel the JBC “to immediately transmit
to the
_______________
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706
Antecedents
_______________
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707
In its January 18, 2010 meeting en banc, therefore, the
JBC passed a resolution,15 which reads:
“The Judicial and Bar Council (JBC) announces the opening for
application or recommendation, of the position of CHIEF
JUSTICE OF THE SUPREME COURT, which will be vacated on
17 May 2010 upon the retirement of the incumbent Chief Justice,
HON. REYNATO S. PUNO.
Applications or recommendations for this position must be
submitted not later than 4 February 2010 (Thursday) to the JBC
Secretariat xxx:”
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15 http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf
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16 http://jbc.judiciary.gov.ph/announcements/jbc_announce_2009/jan22%20%2710.pdf
708
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709
Issues
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21 Id.
22 Id., at p. 6.
710
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711
On February 26, 2010, the JBC submitted its comment,
reporting therein that the next stage of the process for the
selection of the nominees for the position of Chief Justice
would be the public interview of the candidates and the
preparation of the short list of candidates, “including the
interview of the constitutional experts, as may be
needed.”24 It stated:25
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days from the occurrence thereof, Section 15, Article VII of the
Constitution concerning the ban on Presidential appointments
“two (2) months immediately before the next presidential
elections and up to the end of his term” and Section 261 (g),
Article XXII of the Omnibus Election Code of the Philippines.
12. Since the Honorable Supreme Court is the final interpreter of
the Constitution, the JBC will be guided by its decision in these
consolidated Petitions and Administrative Matter.
_______________
713
_______________
27 Id., at p. 14.
28 Id., at p. 15.
29 Id., at pp. 20-24.
30 Id., at pp. 25-27.
31 Id., at pp. 29-30.
714
_______________
32 Id.
33 Id., at pp. 32-33.
34 Id., at pp. 34-35.
35 Id.
715
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716
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717
(i) The opposition-in-intervention dated March 3, 2010
of Walden F. Bello and Loretta Ann P. Rosales (Bello
et al.); and
(j) The consolidated comment/opposition-in-intervention
dated March 4, 2010 of the Women Trial Lawyers
Organization of the Philippines (WTLOP),
represented by Atty. Yolanda Quisumbing-Javellana;
Atty. Belleza Alojado Demaisip; Atty. Teresita
Gandionco-Oledan; Atty. Ma. Verena Kasilag-
Villanueva; Atty. Marilyn Sta. Romana; Atty. Leonila
de Jesus; and Atty. Guinevere de Leon (WTLOP).
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Intervenors Ubano, Boiser, NUPL, Corvera, and Lim
maintain that the Omnibus Election Code penalizes as an
election offense the act of any government official who
appoints, promotes, or gives any increase in salary or
remuneration or privilege to any government official or
employee during the period of 45 days before a regular
election; that the provision covers all appointing heads,
officials, and officers of a government office, agency or
instrumentality, including the President; that for the
incumbent President to appoint the next Chief Justice upon
the retirement of Chief Justice Puno, or during the period
of the ban under the Omnibus Election Code, constitutes an
election offense; that even an appointment of the next Chief
Justice prior to the election ban is fundamentally invalid
and without effect because there can be no appointment
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Oppositors NUPL, Corvera, Lim and BAYAN et al. state
that the JBC’s act of nominating appointees to the
Supreme Court is purely ministerial and does not involve
the exercise of judgment; that there can be no default on
the part of the JBC in submitting the list of nominees to
the President, considering that the call for applications
only begins from the occurrence of the vacancy in the
Supreme Court; and that the commencement of the process
of screening of applicants to fill the vacancy in the office of
the Chief Justice only begins from the retirement on May
17, 2010, for, prior to this date, there is no definite legal
basis for any party to claim that the submission or non-
submission of the list of nominees to the President by the
JBC is a matter of right under law.
The main question presented in all the filings herein—
because it involves two seemingly conflicting provisions of
the Constitution—imperatively demands the attention and
resolution of this Court, the only authority that can resolve
the question definitively and finally. The imperative
demand rests on the ever-present need, first, to safeguard
the independence, reputation, and integrity of the entire
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722
Black defines locus standi as “a right of appearance in a
court of justice on a given question.”41 In public or
constitutional litigations, the Court is often burdened with
the determination of the locus standi of the petitioners due
to the ever-present need to regulate the invocation of the
intervention of the Court to correct any official action or
policy in order to avoid obstructing the efficient functioning
of public officials and offices involved in public service. It is
required, therefore, that the petitioner must have a
personal stake in the outcome of the controversy, for, as
indicated in Agan, Jr. v. Philippine International Air
Terminals Co., Inc.:42
_______________
723
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724
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of public duty and the enforcement of a public right, and the people are
the real party-in-interest); Legaspi v. Civil Service Commission, G.R. No.
72119, May 29, 1987, 150 SCRA 530 (in which the Court declared that
where an assertion of a public right is involved, the requirement of
personal interest is satisfied by the mere fact that the petitioner is a
citizen and is part of the general public which possesses the right);
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,
L. No. 81311, June 30, 1988, 163 SCRA 371 (in which the Court
disregarded objections to taxpayers’ lack of personality to sue in
determining the validity of the VAT Law); Albano v. Reyes, G.R. No.
83551, July 11, 1989, 175 SCRA 264 (in which the Court pronounced that
although no expenditure of public funds was involved in the questioned
contract, the petitioner was nonetheless clothed with the legal personality
under the disclosure provision of the Constitution to question it,
considering its important role in the economic development of the country
and the
725
_______________
54 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.
55 275 Ky 91, 120 SW2d 765 (1938).
56 19 Wend. 56 (1837).
726
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727
The petitioners in G.R. No. 191342 are the Governors of
the Integrated Bar of the Philippines (IBP) for Southern
Luzon and Eastern Visayas. They allege that they have the
legal standing to enjoin the submission of the list of
nominees by the JBC to the President, for “[a]n
adjudication of the proper interpretation and application of
the constitutional ban on midnight appointments with
regard to respondent JBC’s function in submitting the list
of nominees is well within the concern of petitioners, who
are duty bound to ensure that obedience and respect for the
Constitution is upheld, most especially by government
offices, such as respondent JBC, who are specifically tasked
to perform crucial functions in the whole scheme of our
democratic institution.” They further allege that, reposed
in them as members of the Bar, is a clear legal interest in
the process of selecting the members of the Supreme Court,
and in the selection of the Chief Justice, considering that
the person appointed becomes a member of the body that
has constitutional supervision and authority over them and
other members of the legal profession.61
The Court rules that the petitioners have each
demonstrated adequate interest in the outcome of the
controversy as to vest them with the requisite locus standi.
The issues before us are of transcendental importance to
the people as a whole, and to the petitioners in particular.
Indeed, the issues affect everyone (including the
petitioners), regardless of one’s personal interest in life,
because they concern that great doubt about the authority
of the incumbent President to appoint not only the
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_______________
728
_______________
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729
Justiciability
_______________
64 Id.
730
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.
The ripeness of the controversy for judicial
determination may not be doubted. The challenges to the
authority of the JBC to open the process of nomination and
to continue the process until the submission of the list of
nominees; the insistence of some of the petitioners to
compel the JBC through mandamus to submit the short
list to the incumbent President; the counter-insistence of
the intervenors to prohibit the JBC from submitting the
short list to the incumbent President on the ground that
said list should be submitted instead to the next President;
the strong position that the incumbent President is already
prohibited under Section 15, Article VII from making any
appointments, including those to the Judiciary, starting on
May 10, 2010 until June 30, 2010; and the contrary
position that the incumbent President is not so prohibited
are only some of the real issues for determination. All such
issues establish the ripeness of the controversy, considering
that for some the short list must be submitted before the
vacancy actually occurs by May 17, 2010. The outcome will
not be an abstraction, or a merely hypothetical exercise.
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.
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732
We need not await the occurrence of the vacancy by May
17, 2010 in order for the principal issue to ripe for judicial
determination by the Court. It is enough that one alleges
conduct arguably affected with a constitutional interest,
but seemingly proscribed by the Constitution. A reasonable
certainty of the occurrence of the perceived threat to a
constitutional interest is sufficient to afford a basis for
bringing a challenge, provided the Court has sufficient
facts before it to enable it to intelligently adjudicate the
issues.65 Herein, the facts are not in doubt, for only legal
issues remain.
Substantive Merits
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
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive
Department), provides:
_______________
65 See Buckley v. Valeo, 424 U.S. 1, 113-118 (1976); Regional Rail
Reoganization Act Cases, 419 U.S. 102, 138-148 (1974).
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733
“We have in the political part of this Constitution opted for the
separation of powers in government because we believe that the
only way to protect freedom and liberty is to separate and divide
the awesome powers of government. Hence, we return to the
separation of powers doctrine and the legislative, executive and
judicial departments.”66
_______________
734
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_______________
735
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736
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737
On the other hand, Section 15, Article VII—which in effect
deprives the President of his appointing power “two months
immediately before the next presidential elections up to the end of
his term”—was approved without discussion.”68
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738
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_______________
71 Dizon v. Encarnacion, G.R. No. L-18615, December 24, 1963, 9 SCRA 714.
72 Crawford, Earl. T., The Construction of Statutes, Thomas Law Book
Company, St. Louis, Missouri, 262-264 (1940).
739
_______________
740
_______________
741
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742
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fact influence the results of elections and, for that reason, their
making is considered an election offense.”76
_______________
743
_______________
744
_______________
745
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.84 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.
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 po-
_______________
746
II
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III
_______________
751
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.86 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.87
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.
Section 8(5) and Section 9, Article VIII, mandate the
JBC to submit a list of at least three nominees to the
President for every vacancy in the Judiciary:
“Section 8. xxx
(5) The Council shall have the principal function of
recommending appointees to the Judiciary. xxx
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.
For the lower courts, the President shall issue the
appointments within ninety days from the submission of
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the list.”
_______________
752
_______________
753
IV
_______________
754
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Corona, J., No part.
Carpio-Morales, J., Please see Dissenting Opinion.
Velasco, Jr., I join the separate opinion of Justice
Nachura.
Nachura, J., Please see Separate Opinion.
Brion, J., See my Separate Opinion.
Peralta, J., In the result. I join the opinion of Justice
Brion.
Del Castillo, J., In the result. I share the view of
Justice Brion.
Abad, J., Please see my Concurrence.
Villarama, Jr., J., I certify that Justice Villarama
voted in favor of the Decision of Justice Bersamin—Puno,
C.J.
Mendoza, J., In the result. I join Justice Brion in his
Separate Opinion.
DISSENTING OPINION
CARPIO-MORALES, J.:
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_______________
757
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Constitutional draftsmanship style is
the weakest aid in arriving at a con-
stitutional construction
The first ratiocination adverts to the “organization and
arrangement of the provisions of the Constitution” that
was, as the ponencia declares, purposely made by the
framers of the Constitution to “reflect their intention and
manifest their vision” of the charter’s contents.
It is unfortunate that the ponencia chiefly relies on the
trivialities of draftsmanship style in arriving at a
constitutional construction. The petitioner in Anak
Mindanao Party-List Group v. The Executive Secretary5
raised a similar argument, but the Court held:
_______________
5 G.R. No. 166052, August 29, 2007, 531 SCRA 583, where the petitioner
assailed the placing of the National Commission on Indigenous Peoples as an
attached agency of the Department of Agrarian Reform on the ground that, inter
alia, policy and program coordination between allegedly conceptually different
government agencies is unconstitutional.
758
_______________
759
_______________
760
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_______________
761
_______________
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762
_______________
763
The second ratiocination in the ponencia could thus
not remove an added constitutional safeguard by
pretending to have examined and concluded that the
establishment of the JBC had eliminated all encompassing
forms of political maneuverings during elections.
Otherwise, reading into the Constitution such conclusion so
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764
765
The exception is likewise clear. Expressio unius et
exclusio alterius. The express mention of one person, thing
or consequence implies the exclusion of all others.10 There
is no clear circumstance that would indicate that the
enumeration in the exception was not intended to be
exclusive. Moreover, the fact that Section 15 was couched
in negative language reinforces the exclusivity of the
exception.
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with exceptions, the court will not curtail the former nor add to
the latter by implication.”11 (italics in the original; underscoring
supplied)
_______________
766
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767
What complicates the ponencia is its great preoccupation
with Section 15 of Article VII, particularly its fixation with
sentences or phrases that are neither written nor referred
to therein. Verba legis non est recedendum, index animi
sermo est. There should be no departure from the words of
the statute, for speech is the index of intention.
IN FINE, all rules of statutory construction virtually
revolt against the interpretation arrived at by the
ponencia.
The 90-day period to fill a vacancy in
the Supreme Court is suspended during
the ban on midnight appointments
Although practically there is no constitutional crisis or
conflict involved upon the retirement of the incumbent
Chief Justice, the ponencia illustrates the inapplicability of
the 90-day mandate to every situation of vacancy in the
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768
_______________
15 Decision, p. 37.
16 Infra note 18.
769
Considering also that Section 15 of Article VII is an
express limitation on the President’s power of appointment,
the running of the 90-day period is deemed suspended
during the period of the ban which takes effect only once
every six years.
This view differs from Valenzuela in that it does not
implement Section 15 of Article VII so as to breach Section
4(1) of Article VIII. Instead of disregarding the 90-day
period in the observance of the ban on midnight
appointments, the more logical reconciliation of the two
subject provisions is to consider the ban as having the
effect of suspending the duty to make the appointment
within 90 days from the occurrence of the vacancy.
Otherwise stated, since there is a ban, then there is no
duty to appoint as the power to appoint does not even exist.
Accordingly, the 90-day period is suspended once the ban
sets in and begins or continues to run only upon the
expiration of the ban.
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770
_______________
771
_______________
772
_______________
23 Cf. Brillantes, Jr. v. Yorac, G.R. No. 93867, December 18, 1990, 192
SCRA 358.
24 CONSTITUTION, Art. VIII, Sec. 1.
25 Complaint of Mr. Aurelio Indencia Arrienda against Justice Puno,
499 Phil. 1, 14-15; 460 SCRA 1, 16 (2005).
773
SEPARATE OPINION
NACHURA, J.:
The Antecedents
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774
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2 Emphasis supplied.
775
_______________
3 Emphasis supplied.
4 A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.
776
“The Judicial and Bar Council (JBC) announces the opening for
application or recommendation, of the position of CHIEF
JUSTICE OF THE SUPREME COURT, which will be vacated on
17 May 2010 upon the retirement of the incumbent Chief Justice,
HON. REYNATO S. PUNO.
Applications or recommendations for this position must be
submitted not later than 4 February 2010 (Thursday) to the JBC
Secretariat. x x x.”6
_______________
5 http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf (visited:
March 11, 2010).
6
http://jbc.judiciary.gov.ph/announcements/jbc_announce_2009/jan.22’10.pdf
(visited: March 11, 2010).
7 Comment of the JBC, p. 6.
777
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Notably, although the petitions sport different
appellations (for mandamus, or prohibition, or even as an
administrative matter), they (except the Soriano petition)
share a common bottom line issue, i.e., a definitive ruling
on whether, in light of the perceived conflict between
Article VII, Section 15, and Article VIII, Section 4(1), the
incumbent President can validly appoint a Chief Justice
after Chief Justice Puno retires on May 17, 2010.
Thus, the Court consolidated the petitions and required
the JBC and the Office of the Solicitor General (OSG) to file
their respective comments.
Significantly, the JBC, in its February 25, 2010
Comment, stated:
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_______________
8 Italics supplied.
779
My Position
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As an essential ingredient for the exercise of the power
of judicial review, an actual case or controversy
involves a conflict of legal rights, an assertion of opposite
legal claims susceptible to judicial resolution.9 The
controversy must be justiciable—definite and concrete—
touching on the legal relations of parties having adverse
legal interests. In other words, the pleadings must show an
active antagonistic assertion of a legal right, on one hand,
and a denial thereof, on the other; that is, the case must
concern a real and not a merely theoretical question or
issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree
conclusive in nature, as distinguished from an opinion
advising what the law would be upon a hypothetical state
of facts.10 The rationale for this requirement is to prevent
the courts through avoidance of premature adjudication
from entangling themselves in abstract disagreements, and
for us to be satisfied that the case does not present a
hypothetical injury or a claim contingent upon some event
that has not and indeed may never transpire.11
Thus, justiciability requires (1) that there be an actual
controversy between or among the parties to the dispute;
(2) that the interests of the parties be adverse; (3) that the
matter in controversy be capable of being adjudicated by
judicial power; and (4) that the determination of the
controversy will result in practical relief to the
complainant.12
_______________
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781
_______________
782
_______________
15 Pefianco v. Moral, 379 Phil. 468, 479; 322 SCRA 439 (2000).
16 PHILCONSA petition, p. 5.
17 Soriano petition, p. 4; and Tolentino petition, p. 2.
783
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784
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785
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21 Supra note 1.
22 358 Phil. 896; 298 SCRA 408 (1998).
23 See Confederation of Sugar Producers Association, Inc. v.
Department of Agrarian Reform, G.R. No. 169514, March 30, 2007, 519
SCRA 582, 620; Board of Optometry v. Hon. Colet, 328 Phil. 1187, 1206
(1996); and Abbas v. Commission on Elections, G.R. Nos. 89651 & 89965,
November 10, 1989, 179 SCRA 287, 300.
786
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24 Sec. Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 429; 292 SCRA
402, 416-417 (1998); Angara v. Electoral Commission, 63 Phil. 139, 158
(1936).
25 Automotive Industry Workers Alliance v. Romulo, G.R. No. 157509,
January 18, 2005, 449 SCRA 1, 10.
26 See Sec. Guingona, Jr. v. Court of Appeals, supra note 24.
27 33 Phil. 494, 510 (1970).
787
_______________
28 424 US 1 (1976).
29 419 US 102 (1974).
788
A final note. If petitioners only want guidance from this
Court, then, let it be stated that enough guidance is
already provided by the Constitution, the relevant laws,
and the prevailing jurisprudence on the matter. The Court
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SEPARATE OPINION
BRION, J.:
I AGREE with the conclusion that the President can
appoint the Chief Justice and Members of the Supreme
Court two months before a presidential election up to the
end of the President’s term, but DISAGREE with the
conclusion that the authority to appoint extends to the
whole Judiciary.
I. Prefatory Statement
The debate, in and out of this Court, on the issues these
consolidated cases pose, have been differently described to
be at varying levels of severity and intensity. What we in
Court do know is the multiplicity of petitions and
interventions
_______________
30 Supra note 1.
789
790
(2) The regular members of the Council shall be appointed by
the President for a term of four years with the consent of the
Commission on Appointments. Of the Members first appointed,
the representative of the Integrated Bar shall serve for four years,
the professor of law for three years, the retired justice for two
years, and the representative of the private sector for one year.
(3) The Clerk of the Supreme Court shall be the Secretary ex
officio of the Council and shall keep a record of its proceedings.
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792
The basic requisite before this Court can rule is the
presence of an actual case calling for the exercise of judicial
power. This is a requirement that the Constitution itself
expressly imposes; in granting the Court judicial power and
in defining the grant, the Constitution expressly states that
judicial power includes the duty to settle actual
controversies involving rights which are legally
demandable and enforceable.2 Thus, the Court does not
issue advisory opinions, nor do we pass upon hypothetical
cases, feigned problems or friendly suits collusively
arranged between parties without real adverse interests.
Courts cannot adjudicate mere academic questions to
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793
_______________
5 Salonga v. Ernani Cruz Pano, et al., 219 Phil. 402, 429-430; 134
SCRA 438, 463 (1985).
6 See for example, In Re: List of Judges who failed to comply with
Administrative Circular No. 10-94, dated June 29, 1994, 439 Phil. 118;
390 SCRA 319 (2002).
7 CONSTITUTION, Article VIII, Section, 6.
8 Id., Article VIII, Section 5(5).
794
_______________
9 De Castro petition, p. 5.
10 RULES OF COURT, Rule 65, Section 1.
11 RULES OF COURT, Rule 65, Section 3.
12 De Castro petition, par. 8, page 5.
13 See: Constitutional Provision on the JBC, pp. 4-5 of this opinion.
796
_______________
14 De Castro petition, p. 3.
15 De Castro petition, p. 4.
16 Judicial notice is taken of the publications cited, as well as the
records on which these publications are based.
17 JBC Announcement dated January 20, 2010, part of the record on
file with the JBC and with the Court, and published in the Phil. Daily
Inquirer on January 21, 2010.
18 JBC Announcement dated 11 February, 2010, part of the record on
file with the JBC and with the Court, and published in the Phil. Daily
Inquirer on Feb. 13, 2010.
19 JBC Comment, dated Feb. 25, 2010, p. 6.
797
_______________
798
799
For the same absence of a justiciable case, the Peralta
petition for certiorari and mandamus and all related
interventions should be dismissed outright.
c. The PHILCONSA Petition.
The petition of the Philippine Constitution Association
(PHILCONSA, G.R. 191057) is for mandamus under Rule
65 of the Rules of Court.
It seeks to compel the JBC to include the names of
Senior Justices Antonio Carpio and Conchita Carpio-
Morales, and Prosecutor Dennis Villa Ignacio, in the list of
nominees for the position of Chief Justice although these
nominees have manifested that they want their names
submitted to the incoming, not to the incumbent, President
of the Philippines.
The petition also seeks various declarations by this
Court, among them, that Section 15, Article VIII should
apply only to the Executive Department and not to the
Judiciary; and that the Decision of this Court in Valenzuela
should be set aside and overruled.
As basis, the petition alleges that the issues raised in
the petition have spawned “a frenzied inflammatory debate
on the constitutional provisions” that has “divided the
bench and the bar and the general public as well.” It
likewise posits that due to the positions the nominees have
taken, a “final authoritative pronouncement” from this
Court on the meaning and construction of Sections 4(1),
8(5) and 9, Article VIII . . . in relation with Section 15,
Article VII, is necessary. The petition grounds itself, too, on
the needs of public interest and public service.
On the whole, the PHILCONSA petition merely asks for
a declaration from this Court of the meaning and
interpretation of the constitutional provisions on the
appointment of the Chief Justice, the Members of the
Court, and the Judiciary in general during the election ban
period.
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800
As we did with the De Castro petition and based on the
same standards we discussed above, we hold that the
PHILCONSA petition presents no justiciable controversy
that can be the basis for its consideration as a petition for
mandamus and for its adjudication on the merits. On its
face, the petition defines no specific duty that the JBC
should exercise and has neglected to exercise, and presents
no right that has been violated nor any basis to assert any
legal right.23 Like the De Castro petition, it only presents
to the Court a potential controversy that has not ripened.
Consequently, the Court should rule that the
PHILCONSA petition should be dismissed outright
together with any intervention supporting or opposing this
petition.
d. The Mendoza Petition.
The Mendoza petition (A.M. 10-2-5-SC) is unique as
even its docket case number will show; it is presented as an
administrative matter for the Court’s consideration
pursuant to its power of supervision over judges and over
the JBC,24 following the lead taken in the Valenzuela case
(an A.M. case).
The cited Valenzuela case is rooted in a situation not far
different from the present case; a vacancy in the Court25
had occurred and a difference of opinion arose between the
Executive and the Court on the application of Section 15,
Article VII, in relation with Section 4(1) and 9 of Article
VIII, of the Constitution. An exchange of letters took place
between the Palace and the Court on their respective
positions. In the meanwhile, the President appointed two
RTC judges (Valenzuela and Vallarta) within the two-
month period prior
_______________
801
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802
_______________
803
_______________
28 Soriano petition, p. 4.
29 Tolentino petition, p. 2.
804
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805
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8. In July 2010, one regular member of the JBC
would vacate his post. Filling up this vacancy
requires a presidential appointment and the
concurrence of the Commission on Appointments.
9. Last but not the least, the prohibition in
Section 15, Article VII is that “a President or Acting
President shall not make appointments.” This
prohibition is expressly addressed to the President
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808
809
The Chief Justices under the American regime were
appointed by the President of the United States; one Chief
Justice each was appointed under the Commonwealth and
under the Japanese Military Administration; and
thereafter all the Chief Justices were appointed by the
Philippine President. In every case, the appointing
authority was the Chief Executive.
The use of the generic term “Members of the Supreme
Court” under Section 9, Article VIII in delineating the
appointing authority under the 1987 Constitution, is not
new. This was the term used in the present line of
Philippine Constitutions, from 1935 to 1987, and the
inclusion of the Chief Justice with the general term
“Member of the Court” has never been in doubt.32 In fact,
Section 4(1) of the present Constitution itself confirms that
the Chief Justice is a Member of the Court when it provides
that the Court “may sit en banc or, in its discretion, in
divisions of three, five, or seven Members.” The Chief
Justice is a Member of the En Banc and of the First
Division—in fact, he is the Chair of the En Banc and of the
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810
811
Thus, in terms of conflict, Sections 4(1) and Sections 15
can be said to be directly in conflict with each other, while
a conflict is much less evident from a comparison of
Sections 9 and 15. This conclusion answers the verba legis
argument of the Peralta petition that when the words or
terms of a statute or provision is clear and unambiguous,
then no interpretation is necessary as the words or terms
shall be understood in their ordinary meaning. In this case,
the individual provisions, in themselves, are clear; the
conflict surfaces when they operate in tandem or against
one another.
b.2. The Valenzuela Ruling.
The Valenzuela decision gives the full flavor of how the
election ban issue arose because of Chief Justice Narvasa’s
very candid treatment of the facts and the issue.
Valenzuela openly stated that at the root of the dispute was
the then existing vacancy in the Court and the difference of
opinion on the matter between the Executive and the Court
on the application of Section 15, Article VII, in relation
with Section 4(1) and 9 of Article VIII, of the Constitution.
What appears very clear from the decision, however, is
that the factual situation the Court ruled upon, in the
exercise of its supervision of court personnel, was the
appointment by the President of two RTC judges during
the period of the ban. It is clear from the decision, too, that
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_______________
814
_______________
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815
Incidentally, the incumbent President is not up for re-
election by operation of the Constitution so that a
partisanship objection in the President’s favor has no basis.
If any, an objection personal to the Supreme Court
applicant may be raised because of perceived bias or
partisanship in favor of the President’s choice in the
elections. This would be a meaningless objection, however,
if it is considered that the same objection can be raised
against a Supreme Court nominee appointed by the
incoming President; this new appointee will sit in judgment
in the electoral dispute that follows the presidential
elections and can be chosen for bias towards the new
President and his party. In this sense, an objection on the
basis of personal bias is not at all an appropriate
consideration when the issue is systemic in its application
—the application of the election ban on appointments to
Supreme Court appointments.
In any case, the comments made on this point in the
petitions are conjectural and speculative and can hardly be
the bases for adjudication on the merits. If records of the
Court will matter, the duly proven facts on record about
the immediately past Chief Justices speak for themselves
with respect to partisanship in favor of the sitting
President. It is a matter of public record that Chief Justices
Davide, Panganiban and Puno did not try to please their
respective incumbent Presidents, and instead ruled in the
way that the law, jurisprudence and the requirements of
public interests dictated.
The Mendoza petition presents some very compelling
reasons why the Supreme Court, if not the whole Judiciary,
should be exempt from the coverage of the election ban that
Section 15, Article VII imposes.
The Chief Justice is the head of the Judiciary in the
same manner that the President is the Chief Executive and
the Senate President and the Speaker of the House head
the two Houses of Congress. The Constitution ensures,
through clear and precise provisions, that continuity will
prevail in every branch by defining how replacement and
turnover of power
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816
_______________
817
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word less for the Court. One voice can be a big difference if
the missing voice is that of the Chief Justice.
Without meaning to demean the capability of an Acting
Chief Justice, the ascendancy in the Court of a permanent
sitting Chief Justice cannot be equaled. He is the first
among equals—a primus inter pares—who sets the tone for
the Court and the Judiciary, and who is looked up to on all
matters, whether administrative or judicial. To the world
outside the Judiciary, he is the personification of the Court
and the whole Judiciary. And this is not surprising since,
as Chief Justice, he not only chairs the Court en banc, but
chairs as well the Presidential Electoral Tribunal that sits
in judgment over election disputes affecting the President
and the Vice-President. Outside of his immediate Court
duties, he sits as Chair of the Judicial and Bar Council, the
Philippine Judicial Academy and, by constitutional
command, presides over the impeachment of the
President.37 To be sure, the Acting Chief Justice may be
the ablest, but he is not the Chief Justice without the
mantle and permanent title of the Office, and even his
presence as Acting Chief Justice leaves the Court with one
member less. Sadly, this member is the Chief Justice; even
with an Acting Chief Justice, the Judiciary and the Court
remain headless.
The intent of the framers of the Constitution to extend
to the Court a fixed period that will assure the nation that
the Court’s membership shall immediately be filled, is
evidenced no less than by the Constitutional Commission’s
own deliberations where the following exchange took place:
_______________
818
_______________
38 See: Marcelino v. Cruz, No. L-42428, March 14, 1983, 121 SCRA 51.
819
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39 Mendoza petition, p. 3.
820
c. Guidelines for the Judicial and Bar Council
The resolution of the present dispute can only be
complete if clear guidelines are given to the JBC on how it
shall conduct itself under the present circumstances
pursuant to this Court’s ruling. The Court should therefore
direct the JBC to:
A. forthwith proceed with its normal processes for
the submission of the list of nominees for the vacancy
to be created by the retirement of Chief Justice
Reynato S. Puno, to be submitted to the President on
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4. Grant the Mendoza petition and declare for the
JBC’s guidance that:
a. Section 4(1), Article VIII is an exception to the
coverage of Section 15, Article VII; appointments to
the Supreme Court are not subject to the election ban
under Section 15, Article VII so that the JBC can
submit its list of nominees for the expected vacancy
for the retirement of Chief Justice Reynato S. Puno,
on or before the vacancy occurs, for the President’s
consideration and action pursuant to Section 4(1),
Article VIII;
b. Reiterate our ruling in In re: Valenzuela and
Vallarta that no other appointments of judges of the
lower courts can be made within the election ban
period, pursuant to Section 15, Article VII.
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CONCURRING OPINION
ABAD, J.:
Chief Justice Reynato S. Puno will retire on May 17,
2010. Article VIII, Section 91of the 1987 Constitution
requires the President to choose his successor from at least
three nominees of the Judicial and Bar Council (JBC). On
January 18, 2010 the JBC passed a unanimous resolution2
to start the process of filling up the anticipated vacancy.
Indeed, it invited applications and nominations for the
position through newspapers, later announced the names
of candidates to it, and finally received endorsements in
favor of and oppositions against such candidates.
_______________
1 Article VIII, 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.
2 http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf.
823
_______________
824
Issues to be addressed
Quite ably, the majority opinion already addressed the
several issues raised by the petitions and the oppositions to
them. I join that opinion and would add a few thoughts on
what I believe to be the key issues in this case, namely:
1. Whether or not the case presents an actual
controversy that is ripe for this Court’s adjudication; and
2. Whether or not the Constitutional ban on midnight
appointments applies to the judiciary.
Discussion
_______________
825
_______________
6 Id., Section 5.
7 Id., Section 9 in relation to Section 4(1).
826
_______________
827
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828
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11 4 SCRA 1, 8 (1962).
12 Section 7(1) and (3), Article VIII, 1987 Constitution of the
Philippines.
829
“We wish to inform you that the six (6) nominees of the
JBC were chosen after a long and thorough selection
process. Among others, their public and private track
record, experience and possession of the required
qualities of competence, integrity, probity and
independence were carefully studies and considered by
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the JBC. They are all highly qualified for the two (2)
vacancies in the Supreme Court and indeed, your letter of
July 26, 2009 does not assail and hence, concedes the
qualification of the six (6) nominees.
With due respect, the JBC cannot acquiesce to your
request to expand the short list of nominees submitted to
your office. The decision whether to include three or more
than three name in the short list of the nominees
exclusively belongs to the JBC. It is one of the important
innovations in the
830
831
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