629 Phil. 629
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. 191002
[1] and G.R. No. 191149
[2] 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. 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.
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,
[5] 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,
[6] which the Court consolidated on March 9, 2010 with the petitions earlier filed, 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 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.
All the petitions now before the Court pose as the principal legal question whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement. That question is undoubtedly impressed with transcendental importance to the Nation, because the appointment of the Chief Justice is any President's most important appointment.
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]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 President, within a reasonable time, its nomination list for the position of chief justice upon the mandatory retirement of Chief Justice Reynato S. Puno, in compliance with its mandated duty under the Constitution" in the event that the Court resolves that the President can appoint a Chief Justice even during the election ban under Section 15, Article VII of the Constitution.
[13]The petitioners in G.R. No. 191342 insist that there is an actual controversy, considering that the "JBC has initiated the process of receiving applications for the position of Chief Justice and has in fact begun the evaluation process for the applications to the position," and "is perilously near completing the nomination process and coming up with a list of nominees for submission to the President, entering into the period of the ban on midnight appointments on March 10, 2010," which "only highlights the pressing and compelling need for a writ of prohibition to enjoin such alleged ministerial function of submitting the list, especially if it will be cone within the period of the ban on midnight appointments."
[14]Antecedents
These cases 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."
On December 22, 2009, Congressman Matias V. Defensor, an
ex officio member of the JBC, addressed a letter to the JBC, requesting that the process for nominations to the office of the Chief Justice be commenced immediately.
In its January 18, 2010 meeting
en banc, therefore, the JBC passed a resolution,
[15] which reads:
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 to be vacated on May 17, 2010 upon the retirement of the incumbent Chief Justice Honorable Reynato S. Puno.
It will publish the opening of the position for applications or recommendations; deliberate on the list of candidates; publish the names of candidates; accept comments on or opposition to the applications; conduct public interviews of candidates; and prepare the shortlist of candidates.
As to the time to submit this shortlist to the proper appointing authority, in the light of the Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all views on the matter.
18 January 2010.
(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council
As a result, the JBC opened the position of Chief Justice for application or recommendation, and published for that purpose its
announcement dated January 20, 2010,
[16] viz:
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:
The announcement was published on January 20, 2010 in the Philippine Daily Inquirer and The Philippine Star.[17]
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. However, the last two declined their nomination through letters dated January 18, 2010 and January 25, 2010, respectively.
[18]Others either applied or were nominated. Victor Fernandez, the retired Deputy Ombudsman for Luzon, applied, but later formally withdrew his name from consideration through his letter dated February 8, 2010. Candidates who accepted their nominations
without conditions were Associate Justice Renato C. Corona; Associate Justice Teresita J. Leonardo-De Castro; Associate Justice Arturo D. Brion; and Associate Justice Edilberto G. Sandoval (Sandiganbayan). Candidates who accepted their nominations
with conditions were Associate Justice Antonio T. Carpio and Associate Justice Conchita Carpio Morales.
[19] Declining their nominations were Atty. Henry Villarica (
via telephone conversation with the Executive Officer of the JBC on February 5, 2010) and Atty. Gregorio M. Batiller, Jr. (
via telephone conversation with the Executive Officer of the JBC on February 8, 2010).
[20]The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to meet the standards set by the JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the Office of the Ombudsman (due to cases pending in the Office of the Ombudsman).
[21]In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the following candidates to invite the public to file their sworn complaint, written report, or opposition, if any, not later than February 22, 2010, to wit: Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales, Associate Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice Sandoval. The
announcement came out in the
Philippine Daily Inquirer and
The Philippine Star issues of February 13, 2010.
[22]Issues
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. In the meanwhile, time is marching in quick step towards May 17, 2010 when the vacancy occurs upon the retirement of Chief Justice Puno.
The actions of the JBC have sparked a vigorous debate not only among legal luminaries, but also among non-legal quarters, and brought out highly disparate opinions on whether the incumbent President can appoint the next Chief Justice or not. Petitioner Mendoza notes that in
Valenzuela, which involved the appointments of two judges of the Regional Trial Court, the Court addressed this issue now before us as an administrative matter "to avoid any possible polemics concerning the matter," but he opines that the polemics leading to
Valenzuela "would be miniscule [
sic] compared to the "polemics" that have now erupted in regard to the current controversy," and that unless "put to a halt, and this may only be achieved by a ruling from the Court, the integrity of the process and the credibility of whoever is appointed to the position of Chief Justice, may irreparably be impaired."
[23]Accordingly, we reframe the issues as submitted by each petitioner in the order of the chronological filing of their petitions.
G.R. No. 191002
- Does the JBC have the power and authority to resolve the constitutional question of whether the incumbent President can appoint a Chief Justice during the election ban period?
- Does the incumbent President have the power and authority to appoint during the election ban the successor of Chief Justice Puno when he vacates the position of Chief Justice on his retirement on May 17, 2010?
G.R. No. 191032
- Is the power to appoint the Chief Justice vested in the Supreme Court en banc?
G.R. No. 191057
- Is the constitutional prohibition against appointment under Section 15, Article VII of the Constitution applicable only to positions in the Executive Department?
- Assuming that the prohibition under Section 15, Article VII of the Constitution also applies to members of the Judiciary, may such appointments be excepted because they are impressed with public interest or are demanded by the exigencies of public service, thereby justifying these appointments during the period of prohibition?
- Does the JBC have the authority to decide whether or not to include and submit the names of nominees who manifested interest to be nominated for the position of Chief Justice on the understanding that his/her nomination will be submitted to the next President in view of the prohibition against presidential appointments from March 11, 2010 until June 30, 2010?
A. M. No. 10-2-5-SC
- Does Section 15, Article VII of the Constitution apply to appointments to positions in the Judiciary under Section 9, Article VIII of the Constitution?
- May President Gloria Macapagal-Arroyo make appointments to the Judiciary after March 10, 2010, including that for the position of Chief Justice after Chief Justice Puno retires on May 17, 2010?
G.R. No. 191149
- Does the JBC have the discretion to withhold the submission of the short list to President Gloria Macapagal-Arroyo?
G.R. No. 191342
- Does the JBC have the authority to submit the list of nominees to the incumbent President without committing a grave violation of the Constitution and jurisprudence prohibiting the incumbent President from making midnight appointments two months immediately preceding the next presidential elections until the end of her term?
- Is any act performed by the JBC, including the vetting of the candidates for the position of Chief Justice, constitutionally invalid in view of the JBC's illegal composition allowing each member from the Senate and the House of Representatives to have one vote each?
On February 16, 2010, the Court directed the JBC and the Office of the Solicitor General (OSG) to comment on the consolidated petitions, except that filed in G.R. No. 191342.
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]Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper appointing authority, in light of Section 4 (1), Article VIII of the Constitution, which provides that vacancy in the Supreme Court shall be filled within ninety (90) 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.
On February 26, 2010, the OSG also submitted its comment, essentially stating that the incumbent President can appoint the successor of Chief Justice Puno upon his retirement by May 17, 2010.
The OSG insists that: (
a) a writ of prohibition cannot issue to prevent the JBC from performing its principal function under the Constitution to recommend appointees in the Judiciary; (
b) the JBC's function to recommend is a "continuing process," which does not begin with each vacancy or end with each nomination, because the goal is "to submit the list of nominees to Malacañang on the very day the vacancy arises";
[26] the JBC was thus acting within its jurisdiction when it commenced and set in motion the process of selecting the nominees to be submitted to the President for the position of Chief Justice to be vacated by Chief Justice Puno;
[27] (
c) petitioner Soriano's theory that it is the Supreme Court, not the President, who has the power to appoint the Chief Justice, is incorrect, and proceeds from his misinterpretation of the phrase "members of the Supreme Court" found in Section 9, Article VIII of the Constitution as referring only to the Associate Justices, to the exclusion of the Chief Justice;
[28] (
d) a writ of
mandamus can issue to compel the JBC to submit the list of nominees to the President, considering that its duty to prepare the list of at least three nominees is unqualified, and the submission of the list is a ministerial act that the JBC is mandated to perform under the Constitution; as such, the JBC, the nature of whose principal function is executive, is not vested with the power to resolve who has the authority to appoint the next Chief Justice and, therefore, has no discretion to withhold the list from the President;
[29] and (
e) a writ of
mandamus cannot issue to compel the JBC to include or exclude particular candidates as nominees, considering that there is no imperative duty on its part to include in or exclude from the list particular individuals, but, on the contrary, the JBC's determination of who it nominates to the President is an exercise of a discretionary duty.
[30]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;
[31] that in their deliberations on the mandatory period for the appointment of Supreme Court Justices, the framers neither mentioned nor referred to the ban against midnight appointments, or its effects on such period, or vice versa;
[32] 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,"
[33] 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.
The OSG posits that although
Valenzuela involved the appointment of RTC Judges, the situation now refers to the appointment of the next Chief Justice to which the prohibition does not apply; that, at any rate,
Valenzuela even
recognized that there might be "the imperative need for an appointment during the period of the ban," like when the membership of the Supreme Court should be "so reduced that it will have no quorum, or should the voting on a particular important question requiring expeditious resolution be divided";
[34] and that
Valenzuela also recognized that the filling of vacancies in the Judiciary is undoubtedly in the public interest, most especially if there is any compelling reason to justify the making of the appointments during the period of the prohibition.
[35]Lastly, the OSG urges that there are now undeniably compelling reasons for the incumbent President to appoint the next Chief Justice, to wit: (
a) a deluge of cases involving sensitive political issues is "quite expected";
[36] (
b) the Court acts as the Presidential Electoral Tribunal (PET), which, sitting
en banc, is the sole judge of all contests relating to the election, returns, and qualifications of the President and Vice President and, as such, has "the power to correct manifest errors on the statement of votes (SOV) and certificates of canvass (COC)";
[37] (
c) if history has shown that during
ordinary times the Chief Justice was appointed immediately upon the occurrence of the vacancy, from the time of the effectivity of the Constitution, there is now even more reason to appoint the next Chief Justice immediately upon the retirement of Chief Justice Puno;
[38] and (
d) should the next Chief Justice come from among the incumbent Associate Justices of the Supreme Court, thereby causing a vacancy, it also becomes incumbent upon the JBC to start the selection process for the filling up of the vacancy in accordance with the constitutional mandate.
[39]On March 9, 2010, the Court admitted the following comments/oppositions-in-intervention, to wit:
(a) | The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving Corvera (Corvera);[40] |
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(b) | The opposition-in-intervention dated February 22, 2010 of Atty. Christian Robert S. Lim (Lim); |
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(c) | The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso V. Tan, Jr. (Tan); |
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(d) | The comment/opposition-in-intervention dated March 1, 2010 of the National Union of People's Lawyers (NUPL); |
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(e) | The opposition-in-intervention dated February 25, 2010 of Atty. Marlou B. Ubano (Ubano); |
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(f) | The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the Philippines-Davao del Sur Chapter and its Immediate Past President, Atty. Israelito P. Torreon (IBP- Davao del Sur); |
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(g) | The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L. Boiser (Boiser); |
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(h) | The consolidated comment/opposition-in-intervention dated February 26, 2010 of BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary General Renato M. Reyes, Jr.; Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY) Secretary General Gloria Arellano; Alyansa ng Nagkakaisang Kabataan ng Sambayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo ang Pag-asa Convenor Alvin Peters; League of Filipino Students (LFS) Chairman James Mark Terry Lacuanan Ridon; National Union of Students of the Philippines (NUSP) Chairman Einstein Recedes, College Editors Guild of the Philippines (CEGP) Chairman Vijae Alquisola; and Student Christian Movement of the Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et al.); |
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(i) | The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and Loretta Ann P. Rosales (Bello et al.); and |
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(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). |
Intervenors Tan, WTLOP, BAYAN
et al., Corvera, IBP Davao del
Sur, and NUPL take the position that De Castro's petition was bereft of any basis, because under Section 15, Article VII, the outgoing President is constitutionally banned from making any appointments from March 10, 2010 until June 30, 2010, including the appointment of the successor of Chief Justice Puno. Hence,
mandamus does not lie to compel the JBC to submit the list of nominees to the outgoing President if the constitutional prohibition is already in effect. Tan adds that the prohibition against midnight appointments was applied by the Court to the appointments to the Judiciary made by then President Ramos, with the Court holding that the duty of the President to fill the vacancies within 90 days from occurrence of the vacancies (for the Supreme Court) or from the submission of the list (for all other courts) was not an excuse to violate the constitutional prohibition.
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN
et al., and Bello
et al. oppose the insistence that
Valenzuela recognizes the possibility that the President may appoint the next Chief Justice if exigent circumstances warrant the appointment, because that recognition is
obiter dictum;
and aver that the absence of a Chief Justice or even an Associate Justice does not cause epic damage or absolute disruption or paralysis in the operations of the Judiciary. They insist that even without the successor of Chief Justice Puno being appointed by the incumbent President, the Court is allowed to sit and adjudge
en banc or in divisions of three, five or seven members at its discretion; that a full membership of the Court is not necessary; that petitioner De Castro's fears are unfounded and baseless, being based on a mere possibility, the occurrence of which is entirely unsure; that it is not in the national interest to have a Chief Justice whose appointment is unconstitutional and, therefore, void; and that such a situation will create a crisis in the judicial system and will worsen an already vulnerable political situation.
Intervenors Tan, Ubano, WTLOP, Bello
et al., IBP Dacao del Sur, Corvera, and Boiser regard De Castro's argument that a permanent Chief Justice is imperative for the stability of the judicial system and the political situation in the country when the election-related questions reach the Court as false, because there is an existing law on filling the void brought about by a vacancy in the office of Chief Justice; that the law is Section 12 of the Judiciary Act of 1948, which has not been repealed by
Batas Pambansa Blg. 129 or any other law; that a temporary or an acting Chief Justice is not anathema to judicial independence; that the designation of an acting
Chief Justice is not only provided for by law, but is also dictated by practical necessity; that the practice was intended to be enshrined in the 1987 Constitution, but the Commissioners decided not to write it in the Constitution on account of the settled practice; that the practice was followed under the 1987 Constitution, when, in 1992, at the end of the term of Chief Justice Marcelo B. Fernan, Associate Justice Andres Narvasa assumed the position as Acting Chief Justice prior to his official appointment as Chief Justice; that said filling up of a vacancy in the office of the Chief Justice was acknowledged and even used by analogy in the case of the vacancy of the Chairman of the Commission on Elections, per
Brillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme Court has shown that this rule of succession has been repeatedly observed and has become a part of its tradition.
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 until a vacancy occurs; and that the vacancy for the position can occur only by May 17, 2010.
Intervenor Boiser
adds that De Castro's prayer to compel the submission of nominees by the JBC to the incumbent President is off-tangent because the position of Chief Justice is still not vacant; that to speak of a list, much more a submission of such list, before a vacancy occurs is glaringly premature; that the proposed advance appointment by the incumbent President of the next Chief Justice will be unconstitutional; and that no list of nominees can be submitted by the JBC if there is no vacancy.
All the intervenors-oppositors
submit that Section 15, Article VII makes no distinction between the kinds of appointments made by the President; and that the Court, in
Valenzuela, ruled that the appointments by the President of the two judges during the prohibition period were void.
Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not apply only to the appointments in the Executive Department, but also to judicial appointments, contrary to the submission of PHILCONSA; that Section 15 does not distinguish; and that
Valenzuela already interpreted the prohibition as applicable to judicial appointments.
Intervenor WTLOP further posits that petitioner Soriano's contention that the power to appoint the Chief Justice is vested, not in the President, but in the Supreme Court, is utterly baseless, because the Chief Justice is also a Member of the Supreme Court as contemplated under Section 9, Article VIII; and that, at any rate, the term "members" was interpreted in
Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to the Chief Justice and the Associate Justices of the Supreme Court; that PHILCONSA's prayer that the Court pass a resolution declaring that persons who manifest their interest as nominees, but with conditions, shall not be considered nominees by the JBC is diametrically opposed to the arguments in the body of its petition; that such glaring inconsistency between the allegations in the body and the relief prayed for highlights the lack of merit of PHILCONSA's petition; that the role of the JBC cannot be separated from the constitutional prohibition on the President; and that the Court must direct the JBC to follow the rule of law,
that is, to submit the list of nominees only to the next duly elected President after the period of the constitutional ban against midnight appointments has expired.
Oppositor IBP Davao del Sur opines that the JBC - because it is neither a judicial nor a quasi-judicial body - has no duty under the Constitution to resolve the question of whether the incumbent President can appoint a Chief Justice during the period of prohibition; that even if the JBC has already come up with a short list, it still has to bow to the strict limitations under Section 15, Article VII; that should the JBC defer submission of the list, it is not arrogating unto itself a judicial function, but simply respecting the clear mandate of the Constitution; and that the application of the general rule in Section 15, Article VII to the Judiciary does not violate the principle of separation of powers, because said provision is an exception.
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 Judiciary, particularly this Court, an institution that has been unnecessarily dragged into the harsh polemics brought on by the controversy;
second, to settle once and for all the doubt about an outgoing President's power to appoint to the Judiciary within the long period starting two months before the presidential elections until the end of the presidential term; and
third, to set a definite guideline for the JBC to follow in the discharge of its primary office of screening and nominating qualified persons for appointment to the Judiciary.
Thus, we resolve.
Ruling of the Court
Locus Standi of Petitioners
The preliminary issue to be settled is whether or not the petitioners have
locus standi.
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]The question on legal standing is whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."[43] Accordingly, it has been held that the interest of a person assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.[44]
It is true that as early as in 1937, in
People v. Vera,
[45] the Court adopted the
direct injury test for determining whether a petitioner in a public action had
locus standi. There, the Court held that the person who would assail the validity of a statute must have "a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result."
Vera was followed in
Custodio v. President of the Senate,
[46] Manila Race Horse Trainers' Association v. De la Fuente,
[47] Anti-Chinese League of the Philippines v. Felix,[48] and
Pascual v. Secretary of Public Works.[49] Yet, the Court has also held that the requirement of
locus standi, being a mere procedural technicality, can be waived by the Court in the exercise of its discretion. For instance, in 1949, in
Araneta v. Dinglasan,
[50] the Court liberalized the approach when the cases had "transcendental importance." Some notable controversies whose petitioners did not pass the
direct injury test were allowed to be treated in the same way as in
Araneta v. Dinglasan.
[51]In the 1975 decision in
Aquino v. Commission on Elections,
[52] this Court decided to resolve the issues raised by the petition due to their "far-reaching implications," even if the petitioner had no personality to file the suit. The liberal approach of
Aquino v. Commission on Elections has been adopted in several notable cases, permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or validity of laws, regulations, and rulings.
[53]However, the assertion of a public right as a predicate for challenging a supposedly illegal or unconstitutional executive or legislative action rests on the theory that the petitioner represents the public in general. Although such petitioner may not be as adversely affected by the action complained against as are others, it is enough that he sufficiently demonstrates in his petition that he is entitled to protection or relief from the Court
in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as a
citizen or
taxpayer to gain
locus standi. That is not surprising, for even if the issue may appear to concern only the public in general, such capacities nonetheless equip the petitioner with adequate interest to sue. In
David v. Macapagal-Arroyo,
[54] the Court aptly explains why:
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The distinction was first laid down in Beauchamp v. Silk,[55] where it was held that the plaintiff in a taxpayer's suit is in a different category from the plaintiff in a citizen's suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:[56] "In matter of mere public right, however...the people are the real parties...It is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied." With respect to taxpayer's suits, Terr v. Jordan[57] held that "the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied."[58]
Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta (G.R. No. 191149) all assert their right as citizens filing their petitions on behalf of the public who are directly affected by the issue of the appointment of the next Chief Justice. De Castro and Soriano further claim standing as taxpayers, with Soriano averring that he is affected by the continuing proceedings in the JBC, which involve "unnecessary, if not, illegal disbursement of public funds."
[59]PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the law for the purpose of defending, protecting, and preserving the Constitution and promoting its growth and flowering. It also alleges that the Court has recognized its legal standing to file cases on constitutional issues in several cases.
[60]In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a member of the Philippine Bar engaged in the active practice of law, and a former Solicitor General, former Minister of Justice, former Member of the Interim Batasang Pambansa and the Regular Batasang Pambansa, and former member of the Faculty of the College of Law of the University of the Philippines.
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 successor of the retiring incumbent Chief Justice, but also others who may serve in the Judiciary, which already suffers from a far too great number of vacancies in the ranks of trial judges throughout the country.
In any event, the Court retains the broad discretion to waive the requirement of legal standing in favor of any petitioner when the matter involved has transcendental importance, or otherwise requires a liberalization of the requirement.
[62]Yet, if any doubt still lingers about the
locus standi of any petitioner, we dispel the doubt now in order to remove any obstacle or obstruction to the resolution of the essential issue squarely presented herein. We are not to shirk from discharging our solemn duty by reason alone of an obstacle more technical than otherwise. In
Agan, Jr. v. Philippine International Air Terminals Co., Inc.,
[63] we pointed out: "Standing is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest." But even if, strictly speaking, the petitioners "are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised."
[64]Justiciability
Intervenor NUPL maintains that there is no actual case or controversy that is appropriate or ripe for adjudication, considering that although the selection process commenced by the JBC is going on, there is yet no final list of nominees; hence, there is no imminent controversy as to whether such list must be submitted to the incumbent President, or reserved for submission to the incoming President.
Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for judicial determination, pointing out that petitioner De Castro has not even shown that the JBC has already completed its selection process and is now ready to submit the list to the incumbent President; and that petitioner De Castro is merely presenting a hypothetical scenario that is clearly not sufficient for the Court to exercise its power of judicial review.
Intervenors Corvera and Lim separately opine that De Castro's petition rests on an overbroad and vague allegation of political tension, which is insufficient basis for the Court to exercise its power of judicial review.
Intervenor BAYAN
et al. contend that the petitioners are seeking a mere advisory opinion on what the JBC and the President should do, and are not invoking any issues that are justiciable in nature.
Intervenors Bello
et al. submit that there exist no conflict of legal rights and no assertion of opposite legal claims in any of the petitions; that PHILCONSA does not allege any action taken by the JBC, but simply avers that the conditional manifestations of two Members of the Court, accented by the divided opinions and interpretations of legal experts, or associations of lawyers and law students on the issues published in the daily newspapers are "matters of paramount and transcendental importance to the bench, bar and general public"; that PHILCONSA fails not only to cite any legal duty or allege any failure to perform the duty, but also to indicate what specific action should be done by the JBC; that Mendoza does not even attempt to portray the matter as a controversy or conflict of rights, but, instead, prays that the Court should "rule for the guidance of" the JBC; that the fact that the Court supervises the JBC does not automatically imply that the Court can rule on the issues presented in the Mendoza petition, because supervision involves oversight, which means that the subordinate officer or body must first act, and if such action is not in accordance with prescribed rules, then, and only then, may the person exercising oversight order the action to be redone to conform to the prescribed rules; that the Mendoza petition does not allege that the JBC has performed a specific act susceptible to correction for being illegal or unconstitutional; and that the Mendoza petition asks the Court to issue an advisory ruling, not to exercise its power of supervision to correct a wrong act by the JBC, but to declare the state of the law in the absence of an actual case or controversy.
We hold that the petitions set forth an actual case or controversy that is ripe for judicial determination. The reality is that the JBC already commenced the proceedings for the selection of the nominees to be included in a short list to be submitted to the President for consideration of which of them will succeed Chief Justice Puno as the next Chief Justice. Although the position is not yet vacant, the fact that the JBC began the process of nomination pursuant to its rules and practices, although it has yet to decide whether to submit the list of nominees to the incumbent outgoing President or to the next President, makes the situation ripe for judicial determination, because the next steps are the public interview of the candidates, the preparation of the short list of candidates, and the "interview of constitutional experts, as may be needed."
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.
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:
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.
The other, 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.
In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino and Inting, submit that the incumbent President can appoint the successor of Chief Justice Puno upon his retirement on May 17, 2010, on the ground that the prohibition against presidential appointments under Section 15, Article VII does not extend to appointments in the Judiciary.
The Court agrees with the submission.
First. The records of the deliberations of the Constitutional Commission reveal that the framers devoted time to meticulously drafting, styling, and arranging the Constitution. Such meticulousness indicates that the organization and arrangement of the provisions of the Constitution were not arbitrarily or whimsically done by the framers, but purposely made to reflect their intention and manifest their vision of what the Constitution should contain.
The Constitution consists of 18 Articles, three of which embody the allocation of the awesome powers of government among the three great departments, the Legislative (Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a true recognition of the principle of separation of powers that underlies the political structure, as Constitutional Commissioner Adolfo S. Azcuna (later a worthy member of the Court) explained in his sponsorship speech:
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]
As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists the powers vested by the Constitution in the President. The presidential power of appointment is dealt with in Sections 14, 15 and 16 of the Article.
Article VIII is dedicated to the Judicial Department and defines the duties and qualifications of Members of the Supreme Court, among others. Section 4(1) and Section 9 of this Article are the provisions specifically providing for the appointment of Supreme Court Justices. In particular, Section 9 states that the appointment of Supreme Court Justices can only be made by the President upon the submission of a list of at least three nominees by the JBC; Section 4(1) of the Article mandates the President to fill the vacancy
within 90 days from the occurrence of the vacancy.
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.
Although
Valenzuela[67] came to hold that the prohibition covered even judicial appointments, it cannot be disputed that the
Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional Commission, about the prohibition not being intended to apply to the appointments to the Judiciary, which confirmation
Valenzuela even expressly mentioned, should prevail.
Relevantly,
Valenzuela adverted to the intent of the framers in the genesis of Section 4 (1), Article VIII,
viz:
V. Intent of the Constitutional Commission
The journal of the Commission which drew up the present Constitution discloses that the original proposal was to have an eleven-member Supreme Court. Commissioner Eulogio Lerum wanted to increase the number of Justices to fifteen. He also wished to ensure that that number would not be reduced for any appreciable length of time (even only temporarily), and to this end proposed that any vacancy "must be filled within two months from the date that the vacancy occurs." His proposal to have a 15-member Court was not initially adopted. Persisting however in his desire to make certain that the size of the Court would not be decreased for any substantial period as a result of vacancies, 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. As thus amended, the proposal was approved. As it turned out, however, the Commission ultimately agreed on a fifteen-member Court. 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.
In this connection, it may be pointed out that that instruction that any "vacancy shall be filled within ninety days" (in the last sentence of Section 4 (1) of Article VIII) contrasts with the prohibition in Section 15, Article VII, which is couched in stronger negative language - that "a President or Acting President shall not make appointments..."
The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph: "WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST" (of nominees by the Judicial and Bar Council to the President). Davide stated that his purpose was to provide a "uniform rule" for lower courts. According to him, the 90-day period should be counted from submission of the list of nominees to the President in view of the possibility that the President might reject the list submitted to him and the JBC thus need more time to submit a new one.
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]
However, the reference to the records of the Constitutional Commission did not advance or support the result in
Valenzuela. Far to the contrary, the records disclosed the express intent of the framers to enshrine in the Constitution, upon the initiative of Commissioner Eulogio Lerum, "a command [to the President] to fill up any vacancy therein within 90 days from its occurrence," which even
Valenzuela conceded.
[69] The exchanges during deliberations of the Constitutional Commission on October 8, 1986 further show that the filling of a vacancy in the Supreme Court within the 90-day period was a
true mandate for the President,
viz:
MR. DE CASTRO. I understand that our justices now in the Supreme Court, together with the Chief Justice, are only 11.
MR. CONCEPCION. Yes.
MR. DE CASTRO. And the second sentence of this subsection reads: "Any vacancy shall be filled within ninety days from the occurrence thereof."
MR. CONCEPCION. That is right.
MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy?
MR. CONCEPCION. That is right. That is borne out of the fact that in the past 30 years, seldom has the Court had a complete complement.[70]
Moreover, the usage in Section 4(1), Article VIII of the word
shall - an imperative, operating to impose a duty that may be enforced
[71] - should not be disregarded. Thereby, Sections 4(1) imposes on the President the
imperative duty to make an appointment of a Member of the Supreme Court within 90 days from the occurrence of the vacancy. The failure by the President to do so will be a clear disobedience to the Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the Supreme Court was undoubtedly a special provision to establish a
definite mandate for the President as the appointing power, and cannot be defeated by mere judicial interpretation in
Valenzuela to the effect that Section 15, Article VII prevailed because it was "couched in
stronger negative language." Such interpretation even turned out to be conjectural, in light of the records of the Constitutional Commission's deliberations on Section 4 (1), Article VIII.
How
Valenzuela justified its pronouncement and result is hardly warranted. According to an authority on statutory construction:
[72]xxx the court should seek to avoid any conflict in the provisions of the statute by endeavoring to harmonize and reconcile every part so that each shall be effective. It is not easy to draft a statute, or any other writing for that matter, which may not in some manner contain conflicting provisions. But what appears to the reader to be a conflict may not have seemed so to the drafter. Undoubtedly, each provision was inserted for a definite reason. Often by considering the enactment in its entirety, what appears to be on its face a conflict may be cleared up and the provisions reconciled.
Consequently, that construction which will leave every word operative will be favored over one which leaves some word or provision meaningless because of inconsistency. But a word should not be given effect, if to do so gives the statute a meaning contrary to the intent of the legislature. On the other hand, if full effect cannot be given to the words of a statute, they must be made effective as far as possible. Nor should the provisions of a statute which are inconsistent be harmonized at a sacrifice of the legislative intention. It may be that two provisions are irreconcilable; if so, the one which expresses the intent of the law-makers should control. And the arbitrary rule has been frequently announced that where there is an irreconcilable conflict between the different provisions of a statute, the provision last in order of position will prevail, since it is the latest expression of the legislative will. Obviously, the rule is subject to deserved criticism. It is seldom applied, and probably then only where an irreconcilable conflict exists between different sections of the same act, and after all other means of ascertaining the meaning of the legislature have been exhausted. Where the conflict is between two statutes, more may be said in favor of the rule's application, largely because of the principle of implied repeal.
In this connection, PHILCONSA's urging of a revisit and a review of
Valenzuela is timely and appropriate.
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.
[73]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. A misinterpretation like
Valenzuela should not be allowed
to last after its false premises have been exposed.
[74] It will not do to merely distinguish
Valenzuela from these cases, for the result to be reached herein is entirely incompatible with what
Valenzuela decreed.
Consequently
, Valenzuela now
deserves to be quickly sent to the dustbin of the unworthy and forgettable.
We reverse
Valenzuela.
Second. Section 15, Article VII does not apply as well to all
other appointments in the Judiciary.
There is no question that one of the reasons underlying the adoption of Section 15 as part of Article VII was to eliminate
midnight appointments from being made by an
outgoing Chief Executive in the mold of the appointments dealt with in the leading case of
Aytona v. Castillo.
[75] In fact, in
Valenzuela, the Court so observed, stating that:
xxx it appears that Section 15, Article VII is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within the two months preceding a Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code, viz.:
xxx
The second type of appointments prohibited by Section 15, Article VII consists of the so-called "midnight" appointments. In Aytona v. Castillo, it was held that after the proclamation of Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in his bid for reelection, became no more than a "caretaker" administrator whose duty was to "prepare for the orderly transfer of authority to the incoming President." Said the Court:
"The filling up of vacancies in important positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding appointments."
As indicated, the Court recognized that there may well be appointments to important positions which have to be made even after the proclamation of the new President. Such appointments, so long as they are "few and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee's qualifications," can be made by the outgoing President. Accordingly, several appointments made by President Garcia, which were shown to have been well considered, were upheld.
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.
On the other hand, the exception in the same Section 15 of Article VII - allowing appointments to be made during the period of the ban therein provided - is much narrower than that recognized in Aytona. The exception allows only the making of temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. Obviously, the article greatly restricts the appointing power of the President during the period of the ban.
Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on the President's power of appointment, it is this Court's view that, as a general proposition, in case of conflict, the former should yield to the latter. Surely, the prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban which, incidentally and as earlier pointed out, comes to exist only once in every six years. Moreover, those occurring in the lower courts can be filled temporarily by designation. But prohibited appointments are long-lasting and permanent in their effects. They may, as earlier pointed out, in fact influence the results of elections and, for that reason, their making is considered an election offense.[76]
Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that the Constitutional Commission confined the 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. 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,
[77] 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, it is axiomatic in statutory construction that the ascertainment of the purpose of the enactment is a step in the process of ascertaining the intent or meaning of the enactment, because the reason for the enactment must necessarily shed considerable light on "the law of the statute,"
i.e., the intent; hence, the enactment should be construed with reference to its intended scope and purpose, and the court should seek to carry out this purpose rather than to defeat it.
[78]Also, the intervention of the 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. The experience from the time of the establishment of the JBC shows that even candidates for judicial positions at any level backed by people influential with the President could not always be assured of being recommended for the consideration of the President, because they first had to undergo the vetting of the JBC and pass muster there. 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. This insulating process was absent from the
Aytona midnight appointment.
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 to discuss the question raised by some sectors about the "constitutionality of xxx appointments" to the Court of Appeals in light of the forthcoming presidential elections. 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."
[79] This confirmation was
accepted by the JBC, which then submitted to the President for consideration the nominations for the eight vacancies in the Court of Appeals.
[80]The fault of
Valenzuela was that it accorded no weight and due consideration to the confirmation of Justice Regalado.
Valenzuela was weak, because it relied on interpretation to determine the intent of the framers rather than on the deliberations of the Constitutional Commission. Much of the unfounded doubt about the President's power to appoint during the period of prohibition in Section 15, Article VII could have been dispelled since its promulgation on November 9, 1998, had
Valenzuela properly acknowledged and relied on the confirmation of a distinguished member of the Constitutional Commission like Justice Regalado.
Fourth. Of the 23 sections in Article VII, three (
i.e., Section 14, Section15, 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,
[81] and evidently refers only to appointments in the Executive Department. It has no application to appointments in the Judiciary, because
temporary or
acting appointments can only undermine the independence of the Judiciary due to their being revocable at will.
[82] The letter and spirit of the Constitution safeguard that independence. 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. Thereby, the Constitutional Commission restored the requirement of confirmation by the Commission on Appointments after the requirement was removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the restored requirement did not include appointments to the Judiciary.
[83]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 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.
[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 political leaders vying for the Presidency in a presidential election. Consequently, the wisdom of having the new President, instead of the current incumbent President, appoint the next Chief Justice is itself suspect, and cannot ensure judicial independence, because the appointee can also become beholden to the appointing authority. In contrast, the appointment by the incumbent President does not run the same risk of compromising judicial independence, precisely because her term will end by June 30, 2010.
Sixth. The argument has been raised to the effect that there will be no need for the incumbent President to appoint during the prohibition period the successor of Chief Justice Puno within the context of Section 4 (1), Article VIII, because anyway there will still be about 45 days of the 90 days mandated in Section 4(1), Article VIII remaining.
The argument is flawed, because it is focused only on the coming vacancy occurring from Chief Justice 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.
The argument also rests on the fallacious assumption that there will still be time remaining in the 90-day period under Section 4(1), Article VIII. The fallacy is easily demonstrable, as the OSG has shown in its comment.
Section 4 (3), Article VII requires the regular elections to be held on the second Monday of May, letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the regular presidential elections are held on May 8, the period of the prohibition is 115 days. If such elections are held on May 14, the period of the prohibition is 109 days. Either period of the prohibition is longer than the full mandatory 90-day period to fill the vacancy in the Supreme Court. The result is that there are
at least 19 occasions (
i.e., the difference
between the
shortest possible period of the ban of 109 days
and the 90-day mandatory period for appointments) in which the outgoing President would be in no position to comply with the constitutional duty to fill up a vacancy in the Supreme Court. It is safe to assume that the framers of the Constitution could not have intended such an absurdity. In fact, in their deliberations on the mandatory period for the appointment of Supreme Court Justices under Section 4 (1), Article VIII, 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:
xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for any vacancy. Such appointments need no confirmation.
xxx
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.
Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief Justice?
The question is not squarely before us at the moment, but it should lend itself to a deeper analysis if and when circumstances permit. It should be a good issue for the proposed Constitutional Convention to consider in the light of Senate President Juan Ponce Enrile's statement that the President can appoint the Chief Justice from among the sitting justices of the Court even without a JBC list.
II
The Judiciary Act of 1948
The posture has been taken that no urgency exists for the President to appoint the successor of Chief Justice Puno, considering that the Judiciary Act of 1948 can still address the situation of having the next President appoint the successor.
Section 12 of the Judiciary Act of 1948 states:
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.
The provision calls for an
Acting Chief Justice in the event of a vacancy in the office of the Chief Justice, or in the event that the Chief Justice is unable to perform his duties and powers. In either of such circumstances, the duties and powers of the office of the Chief Justice shall devolve upon the Associate Justice who is first in precedence until a new Chief Justice is appointed or until the disability is removed
. Notwithstanding that there is no pressing need to dwell on this peripheral matter after the Court has hereby resolved the question of consequence, we do not find it amiss to confront the matter now.
We cannot agree with the posture.
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. 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. Otherwise, they would have simply written so in the Constitution. Consequently, to rely on Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to appoint the next Chief Justice soonest is to defy the plain intent of the Constitution.
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. 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.
The appointment of the next Chief Justice by the incumbent President is preferable to having the Associate Justice who is first in precedence take over. Under the Constitution, the heads of the Legislative and Executive Departments are popularly elected, and whoever are elected and proclaimed at once become the leaders of their respective Departments. However, the lack of any appointed occupant of the office of Chief Justice harms the independence of the Judiciary, because the Chief Justice is the head of the entire Judiciary. The Chief Justice performs functions absolutely significant to the life of the nation. With the entire Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. 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.
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. As summarized in the comment of the OSG, the chronology of succession is as follows:
- When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice Pedro Yap was appointed on the same day;
- When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan was appointed on the same day;
- When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres Narvasa was appointed the following day, December 8, 1991;
- When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario Davide, Jr. was sworn into office the following early morning of November 30, 1998;
- When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio Panganiban was appointed the next day, December 20, 2005; and
- When Chief Justice Panganiban retired on December 6, 2006, Chief Justice Reynato S. Puno took his oath as Chief Justice at midnight of December 6, 2006.[85]
III
Writ of mandamus does not lie against the JBC
May the JBC be compelled to submit the list of nominees to the President?
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 the list.
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.
Under the Constitution, it is mandatory for the JBC to submit to the President the list of nominees to fill a vacancy in the Supreme Court in order to enable the President to appoint one of them
within the 90-day period from the occurrence of the vacancy. The JBC has no discretion to submit the list to the President
after the vacancy occurs, because that shortens the 90-day period allowed by the Constitution for the President to make the appointment. For the JBC to do so will be unconscionable on its part, considering that it will thereby
effectively and
illegally deprive the President of the ample time granted under the Constitution to reflect on the qualifications of the nominees named in the list of the JBC before making the appointment.
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. The object of the petitions for
mandamus herein should only refer to the duty to submit to the President the list of nominees for every vacancy in the Judiciary, because in order to constitute unlawful neglect of duty, there must be an unjustified delay in performing that duty.
[88] 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 distinction between a ministerial act and a discretionary one has been delineated in the following manner:
The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment.[89]
Accordingly, we find no sufficient grounds to grant the petitions for
mandamus and to issue a writ of
mandamus against the JBC. 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.
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.Leonardo-De Castro and
Perez, JJ., concur.
Puno, C.J., no part. JBC as respondent.
Carpio, J., no part as Senior associate, I am involved either way.
Corona, J., no part.
Carpio Morales, J., please see dissenting.
Velasco, Jr., J., join the separate opinion of J. Nachura.
Nachura, and
Brion, JJ., please see separate opinion.
Peralta, and
Mendoza, JJ., in the result, join the opinion of J. Brion.
Del Castillo, J., in the result, shared the view of J. Brion.
Abad, J., please see concurrence.
Villarama, Jr., J., certify that J. Villarama voted in the favor of the Decision of J. Bersamin
[1] Filed on February 9, 2010.
[2] Begun on February 23, 2010.
[3] Initiated on February 10, 2010.
[4] Commenced on February 11, 2010.
[5] Dated February 15, 2010.
[6] Filed on March 8, 2010.
[7] A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.
[8] Petition in G.R. No. 191002, pp. 3-4.
[9] Id., p. 5.
[10] Petition in G.R. No. 191032, pp. 4-8.
[11] Petition in G.R. No. 191057, pp. 1-2.
[12] Id., p. 11.
[13] Petition in G.R. No. 191149.
[14] Petition in G.R. No. 191342.
[15] http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf
[16] http://jbc.judiciary.gov.ph/announcements/jbc_announce_2009/jan22%20%2710.pdf
[17] Comment of the JBC, p. 3.
[18] Id.
[19] Id., pp. 4-5.
[20] Id., p. 5.
[21] Id.
[22] Id., p. 6.
[23] Petition in A.M. No. 10-2-5-SC, pp. 5-6.
[24] Comment of the JBC, p. 6.
[25] Id., p. 7; bold emphasis is in the original text.
[26] Comment of the OSG, pp. 13-14.
[27] Id., p. 14.
[28] Id., p. 15.
[29] Id., pp. 20-24.
[30] Id., pp. 25-27.
[31] Id., pp. 29-30.
[32] Id.
[33] Id., pp. 32-33.
[34] Id., pp. 34-35.
[35] Id.
[36] Id., pp. 35-36. The OSG posits:
National interest compels the President to make such appointment for it is particularly during this crucial period when national leaders are seeking fresh mandates from the people that the Supreme Court, more than at any other time, represents stability. Hence, a full court is ideal to ensure not only due deliberation on and careful consideration of issues but also expeditious disposition of cases.Indeed, such function becomes especially significant in view of the fact that this is the first time that the whole country will experience automated elections.
[37] Id., pp. 36-37. The OSG stresses:
The possible fallouts or serious aftermath of allowing a vacuum in the position of the Chief Justice may be greater and riskier than the consequences or repercussions of inaction. Needless to state, the appointment of the Chief Justice of this Honorable Court (
sic)
is the most important appointment vested by the 1987 Constitution to (
sic)
the President.
[38] Id., p. 37.
[39] Id., p. 38.
[40] Filed by Atty. Pitero M. Reig.
[41] Black's Law Dictionary, 941 (6
th Ed. 1991).
[42] G.R. No. 155001, May 5, 2003, 402 SCRA 612.
[43] Citing
Kilosbayan, Inc. v. Morato, G.R. No. 118910, July 17, 1995, 246 SCRA 540, 562-563,
citing Baker v. Carr, 369 U.S. 186, 7 L. Ed. 633 (1962).
[44] Citing
Kilosbayan, Inc. v. Morato, supra;
Bayan v. Zamora, G.R. No. 138570, October 10, 2000; 342 SCRA 449, 478.
[45] 65 Phil. 56.
[46] G.R. No. 117, November 7, 1945 (Unreported).
[47] G.R. No. 2947, January 11, 1959 (Unreported).
[48] 77 Phil. 1012 (1947).
[49] 110 Phil. 331 (1960).
[50] 84 Phil. 368 (1949)
[51] E.g.,
Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384 SCRA 152 (in which the Court ruled that the enforcement of the constitutional right to information and the equitable diffusion of natural resources are matters of transcendental importance which clothe the petitioner with
locus standi);
Bagong Alyansang Makabayan v. Zamora, G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449 (in which the Court held that "given the transcendental importance of the issues involved, the Court may relax the standing requirements and allow the suit to prosper despite the lack of direct injury to the parties seeking judicial review" of the Visiting Forces Agreement);
Lim v. Executive Secretary, G.R. No. 151445, April 11, 2002, 380 SCRA 739 (in which the Court, albeit conceding that the petitioners might not file suit in their capacity as taxpayers without a showing that
Balikatan 02-01 involved the exercise of Congress' taxing or spending powers, reiterated
Bagong Alyansang Makabayan v. Zamora, declaring
that cases of transcendental importance must be settled promptly and definitely and the standing requirements may be relaxed);
and
Osmeña v. Commission on Elections, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199 SCRA 750 (in which the Court held that where serious constitutional questions were involved, the
transcendental importance to the public of the cases demanded that they be settled promptly and definitely, brushing aside technicalities of procedure).
[52] L-No. 40004, January 31, 1975, 62 SCRA 275.
[53] E.g., Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27 (in which the Court held that it is sufficient that the petitioner is a citizen interested in the execution of the law, because the question is one 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 magnitude of the financial consideration involved, indicating that public interest was definitely involved);
and
Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343 (in which the Court ruled that it had the discretion to waive the requirement of
locus standi in determining the validity of the implementation of the Comprehensive Agrarian Reform Program, although the petitioners were not, strictly speaking, covered by the definition of
proper party).
[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).
[57] 232 NC 48, 59 SE2d 359 (1950).
[58] Bold emphasis is in the original text.
[59] Petition in G.R. No. 191032, p. 2.
[60] Petition in G.R. No. 191057, pp. 3-4; citing the cases of
PHILCONSA v. Gimenez, 15 SCRA 479;
PHILCONSA v. Mathay, 18 SCRA 300;
PHILCONSA v. Enriquez, 235 SCRA 506; and
Lambino v. COMELEC, 505 SCRA 160.
[61] Petition in G.R. No. 191342, pp. 2-3.
[62] See, for instance,
Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000, 338 SCRA 81 (where the petitioner questioned the validity of the deployment and utilization of the Marines to assist the PNP in law enforcement, asserting that IBP was the official organization of Filipino lawyers tasked with the bounden duty to uphold the rule of law and the Constitution, but the Court held that the IBP had not shown that it was so tasked: "In this case, a reading of the petition shows that the IBP has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents. Moreover, because peace and order are under constant threat and lawless violence occurs in increasing tempo, undoubtedly aggravated by the Mindanao insurgency problem, the legal controversy raised in the petition almost certainly will not go away. It will stare us in the face again. It, therefore, behooves the Court to relax the rules on standing and to resolve the issue now, rather than later", and went on to resolve the issues because the petitioner advanced constitutional issues that deserved the attention of the Court in view of their seriousness, novelty, and weight as precedents).
[63] Supra, note 42, p.
645.
[64] Id.
[65] See
Buckley v. Valeo, 424 U.S. 1, 113-118 (1976);
Regional Rail Reorganization Act Cases, 419 U.S. 102, 138-148 (1974).
[66] Record of Proceedings and Debates of the Constitutional Commission, Vol. V., p. 912, October 12, 1998.
[67] Supra, note 6, p. 426-427, stating:
Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on the President's power of appointment, it is this Court's view that, as a general proposition, in case of conflict, the former should yield to the latter. Surely, the prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban which, incidentally and as earlier pointed out, comes to exist only once in every six years. Moreover, those occurring in the lower courts can be filled temporarily by designation. But prohibited appointments are long-lasting and permanent in their effects. They may, as earlier pointed out, in fact influence the results of elections and, for that reason, their making is considered an election offense.
To the contention that may perhaps be asserted, that Sections 4 (1) and 9 of Article VIII should prevail over Section 15 of Article VII, because they may be considered
later expressions of the people when they adopted the Constitution, it suffices to point out that the Constitution must be construed in its entirety as one, single, instrument.
To be sure, instances may be conceived of the imperative need for an appointment, during the period of the ban, not only in the executive but also in the Supreme Court. This may be the case should the membership of the court be so reduced that it will have no quorum or should the voting on a particularly important question requiring expeditious resolution be evenly divided. Such a case, however, is covered by neither Section 15 of Article VII nor Section 4 (1) and 9 of Article VIII.
[68] Id., pp. 422-423.
[69] Id., p. 423.
[70] Record of Proceedings and Debates of the Constitutional Commission, Vol. V., pp. 632-633.
[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).
[73] Garcia v. Social Security Commission Legal and Collection, G.R. No. 170735, December 17, 2007, 540 SCRA 456, 472; citing
Escosura v. San Miguel Brewery, Inc., 4 SCRA 285, (1962).
[74] According to
Arizona v.
Rumsey, 467 U. S. 203, 212 (1984): "Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of
stare decisis demands special justification." The special justification for the reversal of
Valenzuela lies in its intrinsic unsoundness.
[75] No. L-19313, January 19, 1962, 4 SCRA 1.
[76] Supra, note 6, pp. 424-426; bold underscoring supplied for emphasis.
[77] Aytona v. Castillo,
supra, note 74, pp. 8-10 (N.B. - In the time material to
Aytona, there were judges of the Court of First Instance who were appointed to districts that had no vacancies, because the incumbents had not qualified for other districts to which they had been supposedly transferred or promoted; at any rate, the appointments still required confirmation by the Commission on Appointments).
[78] Crawford,
op. cit., supra, note 72, pp. 248-249.
[79] Supra, note 6, p. 413.
[80] Id.
[81] Section 14. Appointments extended by an Acting President shall remain effective, unless revoked by the elected President within ninety days from his assumption or reassumption of office.
[82] Cruz, I.,
Philippine Political Law, 253 (2002); also
Rilloraza v. Vargas, 80 Phil. 297 (1948).
[83] Record of Proceedings and Debates of the Constitutional Commission, Vol. V., p. 908, which indicates that in his sponsorship speech delivered on October 12, 1986 on the floor of the Constitutional Commission, Commissioner Teofisto Guingona explained that "[a]ppointments to the judiciary shall not be subject to confirmation by the Commission on Appointments."
[84] Rodriguez,
Statutory Construction, 171 (1999).
[85] Comment of the OSG, p. 37.
[86] Section 3, Rule 65, 1997
Rules of Civil Procedure.
[87] JG Summit Holdings, Inc. v. Court of Appeals, G.R. No. 124293, November 20, 2000, 345 SCRA 143.
[88] Nery v. Gamolo, A.M. No. P-01-1508, February 7, 2003, 397 SCRA 110, citing
Musni v. Morales, 315 SCRA 85, 86 (1999).
[89] Espiridion v. Court of Appeals, G.R. No. 146933, June 8, 2006, 490 SCRA 273.
D I S S E N T I N G O P I N I O N CARPIO MORALES, J.: "Although the Chief Justice is primus inter pares,
he cannot legally decide a case on his own because of the Court's
nature as a collegial body. Neither can the Chief Justice, by himself,
overturn the decision of the Court, whether of a division or the en banc."
-- Associate Justice Renato C. Corona in
Complaint of Mr. Aurelio Indencia Arrienda
against Justice Puno, 499 Phil. 1, 14 (2005)
Primus Inter pares.
First among equals. The Latin maxim indicates that a person is the most
senior of a group of people sharing the same rank or office. The phrase
has been used to describe the status, condition or role of the prime
minister in most parliamentary nations, the high-ranking prelate in
several religious orders, and the chief justice in many supreme courts
around the world.
[1]The inclination to focus on the
inter pares without due emphasis on the
primus/prima[2]
has spawned contemporary discourse that revives the original tug-of-war
between domination and parity, which impasse the conceived maxim
precisely intended to resolve.
In the present case, several
arguments attempt to depict a mirage of doomsday scenarios arising from
the impending vacancy of the
primus in the Court as a springboard for their plea to avert a supposed undermining of the independence of the judiciary. In reality,
the essential question boils down to the limitation on the appointing power of the President.
The
ponencia
of Justice Bersamin holds that the incumbent President can appoint the
next Chief Justice upon the retirement of Chief Justice Reynato S. Puno
on May 17, 2010 since the prohibition during election period
[3] does not extend to appointments in the judiciary, thereby reversing
In re appointments of Hon. Valenzuela & Hon. Vallarta.
[4]The
ponencia
additionally holds that the Judicial and Bar Council (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.
I DISSENT.
Constitutional draftsmanship style
is the weakest aid in arriving at a
constitutional 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 Secretary[5] raised a similar argument, but the Court held:
AMIN goes on to proffer the concept of "ordering the law" which, so it alleges, can be said of the Constitution's distinct treatment of these three areas, as reflected in separate provisions in different parts of the Constitution.
It argues that the Constitution did not intend an over-arching concept
of agrarian reform to encompass the two other areas, and that how the law is ordered in a certain way should not be undermined by mere executive orders in the guise of administrative efficiency.
The Court is not persuaded.
The
interplay of various areas of reform in the promotion of social justice
is not something implausible or unlikely. Their interlocking nature
cuts across labels and works against a rigid pigeonholing of executive
tasks among the members of the President's official family. Notably,
the Constitution inhibited from identifying and compartmentalizing the
composition of the Cabinet. In vesting executive power in one person
rather than in a plural executive, the evident intention was to invest
the power holder with energy.
AMIN takes premium on the severed treatment of these reform areas in marked provisions of the Constitution. It
is a precept, however, that inferences drawn from title, chapter or
section headings are entitled to very little weight. And so must
reliance on sub-headings, or the lack thereof, to support a strained
deduction be given the weight of helium.
Secondary aids may
be consulted to remove, not to create doubt. AMIN's thesis unsettles,
more than settles the order of things in construing the Constitution. Its
interpretation fails to clearly establish that the so-called "ordering"
or arrangement of provisions in the Constitution was consciously
adopted to imply a signification in terms of government hierarchy from
where a constitutional mandate can per se be derived or
asserted. It fails to demonstrate that the "ordering" or layout was not
simply a matter of style in constitutional drafting but one of
intention in government structuring. With its inherent ambiguity,
the proposed interpretation cannot be made a basis for declaring a law
or governmental act unconstitutional.[6] (emphasis and underscoring supplied)
Concededly,
the allocation of three Articles in the Constitution devoted to the
respective dynamics of the three Departments was deliberately adopted
by the framers to allocate the vast powers of government among the
three Departments in recognition of the principle of separation of
powers.
The equation, however, does not end there. Such kind of
formulation detaches itself from the concomitant system of checks and
balances. Section sequencing alone of Sections 14, 15 and 16 of Article
VII, as explained in the
fourth ratiocination, does not suffice to signify functional structuring.
That
the power of judicial appointment was lodged in the President is a
recognized measure of limitation on the power of the judiciary, which
measure, however, is counterbalanced by the election ban due to the
need to insulate the judiciary from the political climate of
presidential elections. To abandon this interplay of checks and
balances on the mere inference that the establishment of the JBC could
de-politicize the process of judicial appointments lacks constitutional
mooring.
The establishment of the JBC
is not sufficient to curtail the evils
of midnight appointments in the
judiciary The constitutional prohibition in Section 15 found its roots in the case of Aytona v. Castillo,
[7]
where among the "midnight" or "last minute" appointments voided to
abort the abuse of presidential prerogatives or partisan efforts to
fill vacant positions were
one in the Supreme Court and two in the Court of Appeals.
Heeding
Aytona's
admonition, the Constitutional Commission (ConCom) saw it fit to
provide for a comprehensive ban on midnight appointments, finding that
the establishment of the JBC is not enough to safeguard or insulate
judicial appointments from politicization. The ConCom deliberations
reveal:
MR. GUINGONA: | Madam President. |
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THE PRESIDENT: | Commissioner Guingona is recognized. |
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MR. GUINGONA: | Would the distinguished proponent accept an amendment to his amendment to limit this prohibition to members of collegiate courts? The judges of the lower courts perhaps would not have the same category or the same standing as the others mentioned here. |
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MR. DAVIDE: | Pursuant to the post amendment, we already included here government-owned or controlled corporations or their subsidiaries which are not even very sensitive positions. So with more reason that the prohibition should apply to appointments in these bodies. |
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THE PRESIDENT: | Does the Committee accept? |
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FR. BERNAS: | What is common among these people -- Ministers, Deputy Ministers, heads of bureaus or offices -- is that they are under the control of the President. |
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MR. GUINGONA: | That is correct. |
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FR. BERNAS: | Whereas, the other offices the Commissioner mentioned are independent offices. |
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MR. DAVIDE: | The idea of the proposal is that about the end of the term of the President, he may prolong his rule indirectly by appointing people to these sensitive positions, like the commissions, the Ombudsman, the JUDICIARY, so he could perpetuate himself in power even beyond his term of office; therefore foreclosing the right of his successor to make appointments to these positions. We should realize that the term of the President is six years and under what we had voted on, there is no reelection for him. Yet he can continue to rule the country through appointments made about the end of his term to these sensitive positions. |
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FR. BERNAS: | At any rate, there are other checks as far as the appointment of those officers is concerned. |
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MR. DAVIDE: | Only insofar as the Commission on Appointments is concerned for offices which would require consent, and the Judicial Bar Council insofar as the judiciary is concerned. |
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FR. BERNAS: | We leave the matter to the body for a vote.[8] (capitalization and emphasis supplied) |
The clear intent of the framers is thus for the ban on midnight appointments to apply to the judiciary. The succeeding interpellations
[9] suggest no departure from this intent.
For almost half a century, the seeds of
Aytona, as nurtured and broadened by the Constitution, have grown into an established doctrine that has weathered legal storms like
Valenzuela.
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
crucial to the scheme of checks and balances, which is neither written
nor tackled, undermines the noticeable silence or restraint exercised
by the framers themselves from making a definitive analysis.
To illustrate, the instance given in the
fifth ratiocination
that having the new President appoint the next Chief Justice cannot
ensure judicial independence because the appointee can also become
beholden to the appointing authority bears an inconsistent stance. It
does not admit or recognize that the mechanism of removal by
impeachment eliminates the evils of political indebtedness. In any
event, that level of reasoning overlooks the risk of compromising
judicial independence when the outgoing President faces the Court in
the charges that may be subsequently filed against her/him, and when
the appointing President is up for re-election in the peculiar
situation contemplated by Section 4, Article VII of the Constitution.
All rules of statutory construction
revolt against the interpretation
arrived at by the ponenciaIt is simplistic and unreliable for the
ponencia
to contend that had the framers intended to extend the ban in Article
VII to appointments in the judiciary, they would have easily and surely
written so in Article VIII, for it backlashes the question that had the
framers intended to exclude judicial appointments in Article VIII from
the prohibition in Article VII, they would have easily and surely
written so in the excepting proviso in Article VII.
Taking into
account how the framers painstakingly rummaged through various sections
of the Constitution and came up with only one exception with the need
to specify the executive department, it insults the collective
intelligence and diligence of the ConCom to postulate that it intended
to exclude the judiciary but missed out on that one.
To hold
that the ban on midnight appointments applies only to executive
positions, and not to vacancies in the judiciary and independent
constitutional bodies, is to make the prohibition practically useless.
It bears noting that Section 15, Article VII of the Constitution
already allows the President, by way of exception, to make temporary
appointments in the Executive Department during the prohibited period.
Under this view, there is virtually no restriction on the President's
power of appointment during the prohibited period.
The general rule is clear since the prohibition applies to ALL kinds of midnight appointments. The Constitution made no distinction.
Ubi lex non distinguit nec nos distinguere debemos.
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.
Under the rules of statutory construction, exceptions, as a general rule, should be strictly but reasonably construed; they extend only so far as their language fairly warrants, and all doubts should be resolved in favor of the general provisions rather than the exception. Where
a general rule is established by statute with exceptions, the court
will not curtail the former nor add to the latter by implication.[11] (italics in the original; underscoring supplied)
The
proclivity to innovate legal concepts is enticing. Lest the basic rule
be forgotten, it helps to once more recite that when the law is clear,
it is not susceptible to interpretation and must be applied regardless
of who may be affected, even if the law may be harsh or onerous.
[12]In its
third ratiocination, the
ponencia faults
Valenzuela
for not according weight and due consideration to the opinion of
Justice Florenz Regalado. It accords high regard to the opinion
expressed by Justice Regalado as a former ConCom Member, to the
exception of the opinion of all others similarly situated.
It bears noting that the Court had spoken in one voice in
Valenzuela. The
ponencia should not hastily reverse, on the sole basis of Justice Regalado's opinion, the Court's unanimous
en banc decision penned by Chief Justice Andres Narvasa, and concurred in by,
inter alia, Associate Justices who later became Chief Justices - Hilario Davide, Jr., Artemio Panganiban and Reynato Puno.
The
line of reasoning is specious. If that is the case and for accuracy's
sake, we might as well reconvene all ConCom members and put the matter
to a vote among them.
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.[13] (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.
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
appointmentsAlthough
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 Supreme Court (
i.e., the 19-day vacuum articulated in the
sixth ratiocination)
if only to buttress its thesis that judicial appointment is an
exception to the midnight appointments ban. The contemplated situation,
however, supports the idea that the 90-day period is suspended during
the effectivity of the ban.
I submit that the more important and less complicated question is
whether the 90-day period in Section 4(1) of Article VIII[14] runs during the period of prohibition in Section 15 of Article VII. In response to that question, the
ponencia declares that it is the President's "imperative duty to make an appointment of a Member of the Supreme Court within 90 days
from the occurrence of the vacancy [and that t]he failure by the President to do so will be a clear disobedience to the Constitution."
[15]The
ponencia
quotes certain records of the ConCom deliberations which, however, only
support the view that the number of Justices should "not be reduced for
any appreciable length of time" and it is a "mandate to the executive
to fill the vacancy". Notably, there is no citation of any debate on
how the framers reckoned or determined an appreciable length of time of
90 days, in which case a delay of one day could already bring about the
evils it purports to avoid and spell a culpable violation of the
Constitution. On the contrary, that the addition of one month to the
original proposal of 60 days was approved without controversy
[16] ineluctably shows that the intent was
not to strictly impose an inflexible timeframe.
Respecting
the rationale for suspending the 90-day period, in cases where there is
physical or legal impossibility of compliance with the duty to fill the
vacancy within the said period, the fulfillment of the obligation is
released because the law cannot exact compliance with what is
impossible.
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, 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.
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.
One situation which could result in
physical impossibility is
the inability of the JBC to constitute a quorum for some reasons beyond
their control, as that depicted by Justice Arturo Brion in his Separate
Opinion, in which case the 90-day period could lapse without fulfilling
the constitutional obligation.
Another such circumstance which could frustrate the
ponencia's depiction of the inflexibility of the period is a "no-takers" situation where, for some reason, there are no
willing qualified nominees to become a Member of the Court.
[17] Some might find this possibility remote, but then again, the situation at hand or the "absurdity"
[18] of a 19-day overlapping vacuum may have also been perceived to be rare.
The
seventh ratiocination
is admittedly a non-issue. Suffice it to state that the Constitution is
clear that the appointment must come "from a list x x x prepared by the
Judicial and Bar Council."
The Supreme Court can function
effectively during the midnight
appointments ban without an
appointed Chief Justice 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.
[19]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.
Sustaining the view means
[20]
that in case the President appoints as Chief Justice a sitting member
of the Court, from a JBC list which includes, for instance, incumbent
justices and "outsiders," the JBC must forthwith submit a list of
nominees for the post left vacant by the sitting member-now new Chief
Justice. This thus calls for the JBC,
in anticipation, to also commence and conclude another nomination process to fill the vacancy, and
simultaneously submit
a list of nominees for such vacancy, together with the list of nominees
for the position of Chief Justice. If the President appoints an
"outsider" like Sandiganbayan Justice Edilberto Sandoval as Chief
Justice, however, the JBC's toil and time in the second nomination
process are put to waste.
It is ironic 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,
[21] confirmed by tradition,
[22] and settled by jurisprudence
[23] 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.
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
[24]
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.
[25]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.
IN
LIGHT OF THE FOREGOING, I vote to hold, for the guidance of the
Judicial and Bar Council, that the incumbent President is
constitutionally proscribed from appointing the successor of Chief
Justice Reynato S. Puno upon his retirement on May 17, 2010 until the
ban ends at 12:00 noon of June 30, 2010.
[1] Vide http://en.wikipedia.org/wiki/Primus_inter_pares (visited: March 10, 2010).
[2] Feminine ablative of
primus (first among her equals).
[3]
Constitution, 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.
(emphasis, italics and underscoring supplied)
[4] 358 Phil. 896 (1998).
[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.
[6] Id. at 601-603.
[7] No. L-19313, January 19, 1962, 4 SCRA 1, 8.
[8] Record of the 1986 Constitutional Commission, Vol. 2, July 31, 1986, RCC No. 44 (CD Format).
[9] Id. Following were the
deliberations concerning the prohibition on nepotism, wherein the deletion of the word "judiciary" was reflected in the final text of Section 13, Article VII of the Constitution:
MR. TINGSON: | Madam President, may I just ask one question of the proponent? |
THE PRESIDENT: | Commissioner Tingson is recognized. |
MR. TINGSON: | Even though the members of the President's family are related to him, shall we bar the men of probity, honesty and specialized technical knowledge from being appointed? |
MR. DAVIDE: | That is precisely the core or the meat and the heart of the prohibition. In effect, it is just extending it to these sensitive positions that I have mentioned. |
MR. TINGSON: | But in a sense would that not be counterproductive? |
MR. DAVIDE: | If that is the thinking of the Commissioner, he should rather propose for the deletion of the entire sentence since that is really its effect. |
MR. TINGSON: | Will the Commissioner join me if I do? |
MR. DAVIDE: | No. As a matter of fact, I am expanding the prohibition. But if the Commissioner's position is that we might be prohibiting these capable men who are relatives of the President, then the deletion would be proper, which I am not in favor of. |
MR. TINGSON: | Madam President, we have already limited the presidency to one term, predicated on the fact that he will now become a statesman rather than a partisan politician. Then he will be acting for the good of our country; that is, we base that philosophy with that predicate. So I am just wondering why we should not utilize these men who, according to Commissioner Uka, happen to have committed a crime of being related to the President. |
MR. DAVIDE: | Is the Commissioner proposing that as an amendment to my amendment? |
MR. TINGSON: | I would like to. |
MR. DAVIDE: | In the sense that the Commissioner's amendment is to delete the entire sentence? |
MR. TINGSON: | Is that the Commissioner's thinking also? |
MR. DAVIDE: | No, I am entirely for the opposite. |
|
|
MR. TINGSON: | Then, I am not insisting anymore. |
MR. DAVIDE: | If the Commissioner is introducing it as an amendment, I am sorry, I have to reject his proposal. |
THE PRESIDENT: | So, let us now proceed to the amendment of Commissioner Davide. |
MR. GUINGONA: | Madam President, may I just offer one more amendment to the distinguished proponent? After the word "JUDICIARY," we insert: EXCEPT JUDGES OF THE METROPOLITAN TRIAL COURTS. |
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MR. DAVIDE: | To avoid any further complication, I would agree to delete "JUDICIARY." |
MR. GUINGONA: | Thank you. |
MR. DAVIDE: | So, on line 5, the only amendment would consist of the following: after the word "as," insert MEMBERS OF THE CONSTITUTIONAL COMMISSIONS OR THE OFFICE OF THE OMBUDSMAN. |
THE PRESIDENT: | Does the Committee prefer to throw this to the body? |
MR. REGALADO: | We prefer that we submit it to the body. |
VOTING |
|
THE PRESIDENT: | Those in favor of this proposed amendment of Commissioner Davide on page 9, line 5, to include these two offices: the constitutional commissions and the office of the Ombudsman, please raise their hand. (Several Members raised their hand.) |
Those against the proposed amendment will please raise their hand. (Few Members raised their hand.) . |
The results show 24 votes in favor and 9 against; the amendment is approved |
MR. ROMULO: Madam President, we are almost at the end of our long journey. I ask for continued patience on the part of everyone. We are now on Section 20. We have consolidated all the amendments for presentation by one person; and that is, Commissioner Sarmiento. Will the Chair recognize him please? (emphasis, italics and underscoring supplied). |
[10] The Iloilo City Zoning Board of Adjustment & Appeals v. Gegato-Abecia Funeral Homes, Inc., 462 Phil. 803, 815 (2003).
[11] Samson v. Court of Appeals, No. L-43182, November 25, 1986, 145 SCRA 654, 659.
[12] Pascual v. Pascual-Bautista, G.R. No. 84240, March 25, 1992, 207 SCRA 561, 568.
[13] Francisco, Jr., v. The House of Representatives, 460 Phil. 830, 887 (2003), citing
Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1991, 194 SCRA 317, 337-338.
[14]
Constitution, Art. VIII, Sec. 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. (emphasis and underscoring supplied)
[15] Decision, p. 37.
[16] Infra note 18.
[17]
There is no problem in the case of lower courts since the 90-day period
starts from the submission of the list to the President.
Parenthetically, over and above the alleged level of importance and
urgency between the Court and the lower courts, the lack of applicants
for judicial posts in the province is a practical reason why the 90-day
period for lower courts is reckoned from the submission of the JBC
list. Otherwise, one could just imagine the countless constitutional
violations incurred by the President.
[18] Vide Decision, p. 45.
[19]
Record of the 1986 Constitutional Commission, Vol. 1, July 14, 1986,
RCC No. 29 (CD Format. Commissioner Romulo stated that "[t]he sense of
the Committee is that 60 days is awfully short and that
the [Judicial
and Bar] Council, as well as the President, may have difficulties with
that."
[20] In which case the Court's complement remains incomplete with still 14 members.
[21]
Republic Act No. 296 (Judiciary Act of 1948), Section 12 states that in
case of a vacancy in the office of Chief Justice, the Associate Justice
who is first in precedence may act as Chief Justice until one is
appointed and duly qualified.
[22]
Since the time of Chief Justice Cayetano Arellano, this rule of
succession has been observed throughout the Court's history whenever
the position of Chief Justice is temporarily vacant for any reason.
Vide
Revised copy of Special Order No. 826 (March 16, 2010) issued by Chief
Justice Reynato S. Puno who goes on wellness and sabbatical leave from
March 18-30, 2010 designating Senior Associate Justice Antonio T.
Carpio as acting Chief Justice effective March 18, 2010 until Chief
Justice Puno reports back to work.
[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 (2005).
CONCURRING OPINION
ABAD, J.: Chief Justice Reynato S. Puno will retire on May 17, 2010. Article VIII, Section 9
[1] of 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 resolution
[2] 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.
Ordinarily, the JBC would already be holding public interviews of candidates to the office to be followed by a deliberation and the eventual submission of a shortlist of nominees to the President. The Constitution provides that any vacancy in the Supreme Court "shall be filled within ninety days" from its occurrence.
[3] Since the position of Chief Justice will be vacant on May 17, 2010 when Chief Justice Puno shall have retired, the President has to fill up the vacancy during the period May 17 to August 15, 2010.
But by some unforeseen happenstance, that vacancy (May 18) will occur during the period of the midnight appointments ban (March 10 to June 30), a ban intended to prevent an outgoing president from buying votes using such appointments or robbing the incoming president of the opportunity to fill up important positions with people he will be working with. Article VII, Section 15, of the Constitution prohibits the outgoing President from making appointments "two months immediately before the next presidential elections and up to the end of his term," except temporary appointments in the interest of public service or public safety.
[4] The midnight appointments ban this year is in force from March 10 (two months before the elections) to June 30 (the end of the incumbent President's term), a period of 112 days.
Issues to be addressedQuite 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:
- Whether or not the case presents an actual controversy that is ripe for this Court's adjudication; and
- Whether or not the Constitutional ban on midnight appointments applies to the judiciary.
Discussion
One. Invoking the fundamental rule that judicial power is the duty of the courts of justice to settle "actual controversies involving rights which are legally demandable and enforceable," the National Union of People's Lawyers (NUPL) claims that no actual controversy exists in this case as to warrant judicial determination of the issue of whether or not the Constitutional ban on midnight appointment applies to the judiciary since the JBC has not as yet prepared a final list of its nominees to current vacancies in the courts. BAYAN, COURAGE, KADAMAY, LFS, NUSTP, CEGP, SCMP, and BAYAN claim that what the petitioners seek is a mere advisory opinion from the Court, something that it has no power to give.
The Constitution provides that judicial power is the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable.
[5] The court will not act on an action for damages for a slap on the plaintiff's face if the defendant is still to deliver that slap. The law must have established a right which has in fact been violated.
Here, the Constitution imposes on the JBC the duty to recommend to the President those whom he can appoint to the judiciary when a vacancy occurs.
[6] In the case of a vacancy in the Supreme Court, it is implicit that the JBC must submit a list of at least three nominees to the President on time to enable him to fulfill his duty to fill up the vacancy within 90 days after it occurs.
[7] Those who have an interest in the fulfillment of this duty has the right to insist that it be done.
But the JBC appears reluctant or unwilling to perform its above duty in the case of the forthcoming May 17, 2010 vacancy in the office of the Chief Justice. It expressed a desire to determine, initially, from views submitted to it by others and, later, from what the Court might provide it by way of guidance, whether it can submit its list of nominees to the incumbent President during the ban on midnight appointments that sets in on March 10. Indeed, the JBC said in its resolution of January 18, 2010 that, while it would start the selection process, it was yet to determine when and to whom to submit its shortlist of nominees. It saw an apparent conflict between the provisions of Section 4(1) of Article VIII (the ban on midnight appointments) and Section 15 of Article VII (the need to fill up the vacancy within 90 days of its occurrence) of the 1987 Constitution.
Eventually, after taking some steps in the selection process, the JBC held the process in abeyance, unable to decide as yet when and to whom it will submit its list of nominees for the position that Chief Justice Puno will vacate on May 17, 2010. Under the circumstances, the controversy is already ripe for adjudication for, assuming that the ban on midnight appointment does not apply to the judiciary as the petitioners would have it, then the JBC's suspension of its selection process would constitute a violation of its duty under the Constitution to carry on with such process until it is able to submit the desired list to the incumbent President. If my subdivision neighbor begins constructing a shed in his yard and tells me that he has ordered 20 pigs to raise there, I will not wait till the pigs arrive and defecate before I bring an action to abate a nuisance.
As mandated by the Constitution, the incumbent President should be able to fill up the vacancy within 90 days of its occurrence. This presupposes that the incumbent President should have the list on or before May 17, the day the vacancy occurs, so she can comply with her duty under the Constitution to make the appointment within the 90-day period provided by it. Of course, the circumstances is such that the period for appointing the Chief Justice's replacement will span the tenure of the incumbent President (for 44 days) and her successor (for 46 days), but it is the incumbent's call whether to exercise the power or pass it on.
Again, assuming as correct petitioners' view that the ban on midnight appointments does not apply to the judiciary, the JBC's suspension of its selection process places it in default, given its above duty in regard to the submission of its list of nominees to the President within a time constraint. Under the same assumption, moreover, the petitioner citizens and members of the bar would have a demandable right or interest in having the JBC proceed with its 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,
[8] to see to it that the JBC faithfully executes its duties as the Constitution requires of it.
In its Resolution of January 18, 2010, the JBC confesses uncertainty regarding when and to whom to submit its list of nominees for the May 17, 2010 vacancy in the office of Chief Justice in view of the apparently conflicting provisions of the Constitution. Further, in its comment in this case, the JBC declared that it "will be guided by [the Court's] decision in these consolidated Petitions and Administrative Matter." Consequently, as an incident of its Constitutional duty to supervise the JBC, the Court can, to insure JBC's faithful compliance with the Constitution, resolve the issue of whether or not the ban on midnight appointments applies to the judiciary.
Two. 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,"
[9] the oppositors claim that the ban on midnight appointments applies to the judiciary. After examining the reasons for the two apparently conflicting provisions, the Court said that the need to fill up vacancies in the judiciary within the period the Constitution provides must yield to the ban on Presidential midnight appointments. The Court explained this ruling:
Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on the President's power of appointment, it is this Court's view that, as a general proposition, in case of conflict, the former should yield to the latter. Surely, the prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban which, incidentally and as earlier pointed out, comes to exist only once in every six years. Moreover, those occurring in the lower courts can be filled temporarily by designation. But prohibited appointments are long-lasting and permanent in their effects. They may, as earlier pointed out, in fact influence the results of elections and, for that reason, their making is considered an election offense.[10]
But the above assumes that the outgoing incumbent President can make appointments in the judiciary during 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.
[11]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.
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. x x x
This restriction on the President's appointing power is not a small matter.
First. The JBC from whose list of nominees the President will make his appointment is under the supervision of the Supreme Court itself. Indeed, it is headed by the Chief Justice as its presiding officer. The JBC is not a subordinate agency of the Executive Department; the President has neither control nor supervision over it.
Second. The JBC makes its own vetting rules and procedures. The Constitution of course provides for the qualifications of members of the judiciary
[12] but this has not prevented the JBC from establishing grounds for disqualifying candidates, such as the pendency of administrative or criminal cases against them.
Third. The JBC announces any vacancy in the judiciary in newspapers of large circulations. Secret recruitment and trading for votes in the coming elections is out.
Fourth. Anyone who has the basic qualifications can apply for a vacancy or be nominated to it. Thus, the opportunity to be recommended by the JBC for appointment is open or otherwise unrestricted. Political connection is not a consideration that the JBC entertains in short listing its nominees.
Fifth. The JBC invites the public to comment on or submit opposition to the nomination of candidates to a vacancy. And it holds public hearings in which each candidate is queried about his qualifications, affiliations, and other personal circumstances.
Sixth. The names in the list submitted by the JBC to the President are not negotiable. On July 24, 2009 the Executive Secretary returned to JBC its list of six nominees for two vacancies in the Court, requesting additional names that the incumbent President can choose from. Obviously, the President was unhappy with the names on the list. But the JBC declined the request, the pertinent portion of which reads:
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 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 1987 Constitution designed to depoliticize appointments in the Judiciary and promote its independence. This discretion given to the JBC is the lynchpin of its autonomy and it cannot be compromised in the tiniest degree without impairing the delicate check and balance in the appointment of members of the Judiciary installed in our Constitution. The JBC, voting unanimously, cannot therefore accede to your request in light of the imperatives of the Constitution.
Thus, the incumbent President was forced to choose from the few names on the list that she had.
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 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.
Further, 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. Panganiban and Reynato S. Puno voted against positions taken by the administration of the incumbent President who appointed them both to their position. These Chief Justices like those before them were first choices of the JBC before they were those of the Presidents concerned.
I thus reiterate my concurrence with the main decision.
[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.
[3] Article VIII, 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 divisions of three, five, or seven Members.
Any vacancy shall be filled within ninety days from the occurrence thereof.
[4] Article 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.
[5] Article VIII, Section 1, 1987 Constitution of the Philippines.
[6] Id., Section 5.
[7] Id., Section 9 in relation to Section 4(1).
[8] Id., Section 8(1).
[9] 358 Phil. 896 (1998).
[10] Id. at 915-916.
[11] 4 SCRA 1, 8 (1962).
[12] Section 7(1) and (3), Article VIII, 1987 Constitution of the Philippines.
SEPARATE OPINION
NACHURA, J.:"No amount of exigency can make this Court exercise a power where it is not proper."[1] I am deeply impressed by the very well written
ponencia of Justice Lucas P. Bersamin. However, I am unable to concur in all of his conclusions. Instead, I vote to dismiss all the petitions because they have utterly failed to present a justiciable controversy.
The Antecedents
In recent weeks, two potential scenarios have gripped the public mind. The first is the specter of the failure of our first ever automated election which has evoked numerous doomsday predictions. The second is the possibility of the appointment by President Gloria Macapagal Arroyo of the Chief Justice of the Supreme Court--after the compulsory retirement of incumbent Chief Justice Reynato S. Puno on May 17, 2010. This has generated frenzied debates in media, in various lawyers' assemblies, in the academe, and in coffee shops. It has even spawned a number of rallies and demonstrations by civil society groups and by self-styled constitutional experts.
It does not matter that these two situations are merely possibilities, that they are conjectural and speculative at this moment in time. They have, nonetheless, captured the public imagination, and have ushered an open season for unfettered discussion and for dire prognostication.
Not unexpectedly, the controversy posed by the second scenario-- involving concerns closest to home--has arrived in this Court through various petitions and interventions.
The core issue is whether the sitting President of the Philippines, Gloria Macapagal Arroyo, can validly appoint the Chief Justice of the Supreme Court when the incumbent Chief Justice, Reynato S. Puno, compulsorily retires on May 17, 2010, in light of two apparently conflicting provisions of the Constitution.
Article VII, Section 15, provides a constitutional limitation on the President's power of appointment,
viz.:
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.[2]
On the other hand, Article VIII, Section 4(1) contains an express mandate for the President to appoint the Members of the Supreme Court within ninety days from the occurrence of a vacancy, thus--
Sec. 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 divisions of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.[3]
in relation to Article VIII, Section 9, which states that--
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. Any vacancy shall be filled within ninety days from the occurrence thereof.
For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.
The perceived conflict was resolved in administrative matter,
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.[4] Therein, the Court was confronted with the question of whether the appointments of the concerned RTC judges, issued within two months before the presidential election in 1998, were valid. The Court answered that, in the given situation, Article VII, Section 15, has primacy over Article VIII, Section 4(1), because the former was "couched in stronger negative language." Accordingly, the appointments were nullified. However,
Valenzuela's applicability to the present controversy is challenged by most of herein petitioners.
The petitions were filed following certain acts of the Judicial and Bar Council (JBC) related to the constitutional procedure for the appointment of Supreme Court justices, specifically in the matter of the appointment of Chief Justice Puno's successor. On January 18, 2010, the JBC passed a Resolution which relevantly reads:
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 to be vacated on May 17, 2010 upon the retirement of the incumbent Chief Justice Honorable Reynato S. Puno.
It will publish the opening of the position for applications or recommendations; deliberate on the list of candidates; publish the names of candidates; accept comments on or opposition to the applications; conduct public interviews of candidates; and prepare the shortlist of candidates.
As to the time to submit this shortlist to the proper appointing authority, in the light of the Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all views on the matter.
[5]On January 20, 2010, the JBC formally announced the opening, for application or recommendation, of the position of Chief Justice of this Court, thus--
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]
In its February 8, 2010 meeting, the JBC decided to proceed with the process of announcing to the public the names of the candidates for the position. Included in the list of applicants are: (1) Brion, Arturo D.; (2) Carpio, Antonio T.; (3) Corona, Renato C.; (4) Carpio Morales, Conchita; (5) Leonardo-de Castro, Teresita J.; and (6) Sandoval, Edilberto G.
[7]These developments, having already engendered near-hysterical debates, impelled a number of petitioners to file suit. However, obviously hedging against the possibility that the cases would be disallowed on the ground of prematurity, petitioners came to Court using different procedural vehicles.
In G.R. No. 191002, petitioner Arturo de Castro entreats the Court to issue a writ of mandamus to compel the JBC to send the list of nominees for Chief Justice to the incumbent President when the position becomes vacant upon the retirement of Chief Justice Puno on May 17, 2010.
The Philippine Constitution Association (PHILCONSA) and John Peralta, petitioners in G.R. Nos. 191057 and 191149, respectively, plead for the same relief.
In G.R. No. 191032, Jaime Soriano seeks the issuance by the Court of a writ prohibiting the JBC from continuing with its proceedings, particularly the screening of applicants for Chief Justice, based on the hypothesis that the authority to appoint the Chief Justice pertains exclusively to the Supreme Court. He posits that it is the Court that must commence its own internal proceeding to select the successor of Chief Justice Puno.
Amador Tolentino, Jr., in G.R. No. 191342, asks this Court to enjoin and restrain the JBC from submitting the list of nominees for judiciary positions, including that of Chief Justice, to the incumbent President during the period covered in Article VII, Section 15 of the Constitution.
In a cleverly crafted petition which he denominated an administrative matter, former Solicitor General Estelito P. Mendoza filed A.M. No. 10-2-5-SC, imploring this Court to rule,
for the guidance of the JBC, whether the constitutional prohibition in Article VII, Section 15, applies to positions in the judiciary and whether the incumbent President may appoint the successor of Chief Justice Puno upon the latter's retirement.
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:
- The next stage of the process which will be the public interview of the candidates, and the preparation of the shortlist of candidates have yet to be undertaken by the JBC as of this date, including the interview of the constitutional experts, as may be needed.
Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper appointing authority, in light of Section 4(1), Article VIII of the Constitution, which provides that vacancy in the Supreme Court shall be filled within ninety (90) days from the occurrence thereof, Section 15, Article VIII 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.[8]
On the other hand, the OSG, in its Comment dated February 26, 2010, took the position that the incumbent President of the Philippines can appoint the successor of Chief Justice Puno when he retires on May 17, 2010, because the prohibition in Article VII, Section 15, of the Constitution does not apply to appointments in the Supreme Court.
Meanwhile, several motions for intervention with oppositions-in-intervention were received by the Court.
Oppositors-Intervenors Antonio Gregorio III, Peter Irving Corvera, Walden Bello, Loretta Ann Rosales, and National Union of Peoples' Lawyers uniformly contend in their pleadings
that the consolidated petitions should be dismissed outright, because of the absence of an actual case or controversy ripe for judicial adjudication and because of petitioners' lack of legal standing to institute the cases.
Oppositor-Intervenor Mitchell John Boiser posits, among others, that the petitions for mandamus are
premature because there is yet no final list of nominees and the position of Chief Justice is not yet vacant.
Oppositors-Intervenors Yolanda Quisumbing-Javellana, Belleza Alojado Demaisip, Teresita Gandionco-Oledan, Ma. Verena Kasilag-Villanueva, Marilyn Sta. Romana, Leonila de Jesus, and Guinevere de Leon contend, among others, that the incumbent President is prohibited from making appointments within the period prescribed in Article VII, Section 15; that the next President will still have ample time to appoint a Chief Justice when Chief Justice Puno retires on May 17, 2010 before the 90-day period for appointment mandated in Article VIII, Section 4(1) expires; and that in the interim, the duties of the Chief Justice can be exercised by the most senior of the incumbent Supreme Court justices.
My Position
After careful perusal of the pleadings and painstaking study of the applicable law and jurisprudence, I earnestly believe that the consolidated petitions should be dismissed, because
they do not raise an actual case or controversy ripe for judicial determination.As an essential ingredient for the exercise of the power of judicial review, an a
ctual 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]By these standards, the consolidated petitions do not present a justiciable controversy because of the absence of clashing legal rights. The JBC has merely started the selection process by accepting applications and nominations for the position of Chief Justice. This is only the initial stage of the procedure for appointment of a Chief Justice. By the JBC's own admission, it has yet to undertake the public interview of the applicants; it has yet to prepare the shortlist and to decide whether it needs to interview constitutional experts.
Arturo de Castro and John Peralta justify the propriety of the filing of their respective petitions for
certiorari and
mandamus by a common thread:
that the JBC has deferred its decision as to whom to submit the list of nominees.
[13] They are then asking the Court to compel the JBC to submit
the list to the incumbent President.
De Castro's and Peralta's submission tends to mislead the Court. It is clear from the narrated facts that there is yet no list to submit. The JBC is still in the process of screening applicants for the position. Since there is no list to be submitted, there can be no deferment of its submission. De Castro and Peralta have not shown or even alleged that the JBC
has refused or has been unlawfully neglecting[14] to submit its list, if it is already in existence, to the incumbent President.
Mandamus is proper only to compel the performance,
when refused, of a ministerial duty.
[15] The mandamus petition therefore has no leg to stand on as it presents no actual case ripe for judicial determination.
PHILCONSA, for its part, contends that two applicants for the post, Justices Carpio and Carpio Morales, manifested their interest in their nomination on the condition that the same will be submitted to the next President. According to PHILCONSA, this fact "has created a dilemma/quandary to respondent JBC whether to exclude [from] or include [in the list] the names of said two Senior Justices."
[16] It then prays for this Court to rule on the issue.
PHILCONSA, like de Castro and Peralta, is not completely truthful. From its comment, it appears that, as early as February 10, 2010, the JBC had already included the two justices, despite their conditional acceptance of their nominations, in the list of applicants for the post. There is no quandary to speak of.
To justify their petitions for prohibition, Jaime Soriano and Amador Tolentino, Jr. allege that the JBC has already started the screening process for Chief Justice.
[17] Thus, they claim that the Court can now resolve the constitutional question and issue the writ
prohibiting the JBC from submitting the list of nominees to the incumbent President.
As earlier mentioned, absent a shortlist of nominees for Chief Justice prepared by the JBC, there is yet nothing that the Court can prohibit the JBC from
submitting to the incumbent President. The JBC has not even intimated concretely that it will perform the act sought to be prohibited--submitting a list to the incumbent President. The JBC merely started the screening process. Let it be noted that a writ of prohibition is issued to command a respondent to desist from further proceeding in the action or matter specified.
[18] Likewise, without a shortlist, there is nothing that this Court can mandate the JBC to submit to the President.
As to the petition filed by Estelito Mendoza, while it is captioned as an administrative matter,
the same is in the nature of a petition for declaratory relief. Mendoza pleads that this Court interpret two apparently conflicting provisions of the Constitution--Article VII, Section 15 and Article VIII, Section 4(1). Petitioner Mendoza specifically prays for such a ruling "
for the guidance of the [JBC]," a relief evidently in the nature of a declaratory judgment.
Settled is the rule that petitions for declaratory relief are outside the jurisdiction of this Court.
[19] Moreover,
the Court does not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging.
[20] While Mendoza and the other petitioners espouse worthy causes, they have presented before this Court issues which are still subject to
unforeseen possibilities. In other words, the issues they raised are
hypothetical and unripe for judicial determination.
At this point,
several contingent events are still about to unfold. The JBC, after it has screened the applicants, may decide to submit the shortlist of nominees either before or after the retirement of Chief Justice Puno. If it decides to submit the list after May 17, 2010, it may opt to transmit said list of nominees to President Macapagal-Arroyo or to the next President. If the list is transmitted to her, the incumbent President may
either appoint or not appoint the replacement of Chief Justice Puno. We cannot assume that the JBC will do one thing or the other. Neither can we truly predict what the incumbent President will do if such a shortlist is transmitted to her. For us to do so would be to engage in conjecture and to undertake a purely hypothetical exercise.
Thus, the situation calling for the application of either of the conflicting constitutional provisions will arise only when still other contingent events occur. What if the JBC does not finish the screening process during the subject period? What if the President does not make the appointment? Verily, these consolidated petitions involve "uncertain contingent future events that may not occur as anticipated, or indeed may not occur at all," similar to the recently decided
Lozano v. Nograles,
[21] which this Court dismissed through the pen of Chief Justice Puno.
As no positive act has yet been committed by respondents, the Court must not intervene. Again, to borrow the words of Chief Justice Puno in
Lozano, "judicial review is effective largely because it is not available simply at the behest of a partisan faction, but is exercised only to remedy a particular, concrete injury."
Further, the Mendoza petition cannot be likened to the administrative matter in
In Re Appointments of Hon. Valenzuela & Hon. Vallarta,
[22] over which the Court assumed jurisdiction. In that case, the President appointed judges within the constitutional ban and transmitted the appointments to the Chief Justice. Clearly, an actual controversy ripe for judicial determination existed in that case because a positive act had been performed by the President in violation of the Constitution. Here, as shown above, no positive act has been performed by either the JBC or the President to warrant judicial intervention.
To repeat for emphasis, before this Court steps in to wield its awesome power of deciding cases, there must first be an
actual controversy ripe for judicial adjudication. Here, the allegations in all the petitions are conjectural or anticipatory. No actual controversy between real litigants exists.
[23] These consolidated petitions, in other words, are a "purely academic exercise." Hence, any resolution that this Court might make would constitute an attempt at abstraction that can only lead to barren legal dialectics and sterile conclusions unrelated to actualities.
[24]Moreover, the function of the courts is to determine controversies between litigants and
not to give advisory opinions.
[25] Here, petitioners are asking this Court to render an advisory opinion on what the JBC and the President should do. To accede to it is tantamount to an incursion into the functions of the executive department.
[26] This will further inappropriately make the Court an adviser of the President. Chief Justice Enrique Fernando, in his concurring opinion in
Director of Prisons v. Ang Cho Kio,
[27] specifically counseled against this undue portrayal by the Court of the alien role of adviser to the President, thus--
Moreover, I would assume that those of us entrusted with judicial responsibility could not be unaware that we may be laying ourselves open to the charge of presumptuousness. Considering that the exercise of judicial authority does not embrace the alien role of a presidential adviser, an indictment of officiousness may be hard to repel. It is indefinitely worse if the advice thus gratuitously offered is ignored or disregarded. The loss of judicial prestige may be incalculable. Thereafter, there may be less than full respect for court decisions. It would impair the confidence in its ability to live up to its trust not only on the part of immediate parties to the litigation but of the general public as well. Even if the teaching of decided cases both here and in the Philippines is not as clear therefore, there should be, to say the least, the utmost reluctance on the part of any court to arrogate for itself such a prerogative, the exercise of which is fraught with possibilities of such undesirable character.
The
ponencia holds that "we need not await the occurrence of the vacancy by May 17, 2010 in order to have the principal issue be ripe for judicial determination." That may very well be desirable. But still, there must be the palpable presence of an actual controversy because, again, as discussed above, this Court does not issue advisory opinions. The Court only adjudicates actual cases that present definite and concrete controversies touching on the legal relations of the parties having adverse legal interests.
The
ponencia also sought refuge in the American cases of
Buckley v. Valeo[28] and
Regional Rail Reorganization Act Cases[29] to support its position that "the 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." The cited American cases only considered the issue of ripeness and did not confront the absence of an actual case or controversy. Further, in
Buckley, the members of the Commission were already appointed under the statute being challenged as unconstitutional, and they were about to exercise powers under the likewise challenged provisions of the statute. Thus, in those cases, there was the inevitability of the operation of a challenged statute against the appellants. No such situation exists in the cases before us.
Here, the factual and legal setting is entirely different. The JBC only started the screening of the applicants. It has not yet transmitted a list to the President, as, in fact, it still has to make the list. The President has not yet made an appointment for there is yet no vacancy and no shortlist has yet been transmitted to her. The constitutional provisions in question are not yet in operation; they may not even be called into operation. It is not time for the Court to intervene.
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 must not be unduly burdened with petitions raising abstract, hypothetical, or contingent questions. As fittingly phrased by Chief Justice Puno in
Lozano -Given the sparseness of our resources, the capacity of courts to render efficient judicial service to our people is severely limited. For courts to indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is an evil that clearly confronts our judiciary today.[30]
With the above disquisition, I find no compelling need to discuss the other issues raised in the consolidated petitions.
In light of the foregoing, I vote for the dismissal of the consolidated petitions.
[1] Chief Justice Reynato S. Puno in
Atty. Oliver O. Lozano and Atty. Evangeline J. Lozano-Endriano v. Speaker Prospero C. Nograles, Representative, Majority, House of Representatives; Louis "Barok" C. Biraogo v. Speaker Prospero C. Nograles, Speaker of the House of Representatives, Congress of the Philippines, G.R. Nos. 187883 & 187910, June 16, 2009.
[2] Emphasis supplied.
[3] Emphasis supplied.
[4] A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.
[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.
[8] Italics supplied.
[9] Congressman Enrique T. Garcia of the 2nd District of Bataan v. The Executive Secretary,
The Secretary of the Department of Energy, Caltex Philippines, Inc., Petron Corporation, and Pilipinas Shell Corporation, G.R. No. 157584, April 2, 2009.
[10] Information Technology Foundation of the Philippines v. Commission on Elections, G.R. No. 159139, June 15, 2005, 460 SCRA 291, 312-313.
[11] Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 570, 858 A.2d 709 (2004).
[12] Astoria Federal Mortgage Corporation v. Matschke, 111 Conn. App. 462, 959 A.2d 652 (2008).
[13] De Castro petition, p. 5; and Peralta petition, p. 1.
[14] Section 3 of Rule 65 pertinently provides that:
Sec. 3.
Petition for mandamus.--When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.
[15] Pefianco v. Moral, 379 Phil. 468, 479 (2000).
[16] PHILCONSA petition, p. 5.
[17] Soriano petition, p. 4; and Tolentino petition, p. 2.
[18] Section 2 of Rule 65 provides that:
Sec. 2.--
Petition for prohibition.--When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require.
[19] Article VIII, Section 5 of the Constitution does not include petitions for declaratory relief among those within the original jurisdiction of the Supreme Court. Section 1 of Rule 63 further provides that:
Sec. 1.--
Who may file petition.--Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder.
[20] Albay Electric Cooperative, Inc., Edgardo A. San Pablo, and Evan Calleja v. Hon. Rafael P. Santelices,
in his capacity as the Presiding Judge of the Regional Trial Court of Legazpi City, Branch No. 2, and Mayon International Hotel, Inc., G.R. No. 132540, April 16, 2009.
[21] Supra note 1.
[22] 358 Phil. 896 (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.
[24] Sec. Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 429 (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).
[28] 424 US 1 (1976).
[29] 419 US 102 (1974).
[30] Supra note 1.
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 StatementThe
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 filed, generating arguments of varying
shades of validity. Sad but true, what we need in considering all these
submissions is simplification and focus on the critical issues, not the
mass of opinions that merely pile on top of one another. Based on this
standard, this Opinion shall endeavor to be brief, succinct but clear,
and may not be the academic treatise lay readers and even lawyers
customarily expect from the Court.
The constitutional provisions whose interpretation and application are disputed (
the disputed provisions)
are Section 15, Article VII (the Article on the Executive Department)
and Sections 4(1) and 9 of Article VIII (on the Judicial Department).
Not often mentioned but critical to the consideration of the disputed
provision is Section 8, Article VIII on the
Judicial and Bar Council (JBC) - the entity whose acts are under scrutiny in the dispute.
Section 15 of Article VII 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.
On the other hand, the relevant Judicial Department provisions read:
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.
x x x
Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members,
a representative of the Integrated Bar, a professor of law, a retired
Member of the Supreme Court, and a representative of the private sector.
(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.
(4)
The regular members of the Council shall receive such emoluments as may
be determined by the Supreme Court. The Supreme Court shall provide in
its annual budget the appropriations of the Council.
(5) The
Council shall have the principal functions of recommending appointees
to the Judiciary. It may exercise other functions and duties as the
Supreme Court may assign to it.
Section 9. The Members of the
Supreme Court and the judges of the 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 appointment needs no
confirmation.
For the lower courts, the President shall issue the appointment within ninety days from the submission of the list.
These provisions are quoted together to stress the role the JBC plays in the appointment process, and that it is effectively an
adjunct of the Supreme Court: the Council is under the
supervision of the Court, but is
fully independent in undertaking its main function;
the Chief Justice is the Chair, with the SC Clerk of Court as the
Secretary; the emoluments of Council members are determined by the
Court with the Council budget a part of the SC budget; and the SC may
assign functions and duties to the Council.
II. The Questions of Standing & JusticiabilityI 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,
[1] 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.
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
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 satisfy scholarly interest,
however intellectually challenging they may be. As a condition
precedent to the exercise of judicial power, an actual controversy
between litigants must first exist.
[3]An
actual case or controversy exists when a case involves a clash of legal
rights or an assertion of opposite legal claims that the courts can
resolve through the application of law and jurisprudence. The case
cannot be abstract or hypothetical as it must be a concrete dispute
touching on the legal relations of parties having adverse legal
interests. A justiciable controversy admits of specific relief through
a decree that is conclusive in character, whereas an opinion only
advises what the law would be upon a hypothetical state of facts. An
actual case is ripe for adjudication when the act being challenged has
a direct adverse effect on the individual challenging it.
[4]In
the justiciable cases this Court has passed upon, particularly in cases
involving constitutional issues, we have held that the Court also has
the duty to formulate guiding and controlling constitutional
principles, precepts, doctrines, or rules. The Court carries the
symbolic function of educating the bench and the bar on the extent of
protection given by constitutional guarantees.
[5]Separately
from the above concept of claims involving demandable rights and
obligations (but no less real in the strict constitutional sense), is
the authority of the Supreme Court to rule on matters arising in the
exercise of its power of supervision.
Under Section 6 of Article
VIII of the Constitution, the Supreme Court is granted the power of
administrative supervision over all courts and the personnel thereof.
Pursuant to this power, the Court issues administrative circulars and
memoranda to promote the efficient and effective administration of
justice, and holds judges and court personnel administratively
accountable for lapses they may commit.
[6]
Through these circulars, memoranda and administrative matters and
cases, the Court likewise interprets laws relevant to its power of
supervision.
[7] The Court
likewise issues rules concerning, among others, the protection and
enforcement of constitutional rights, pleading, practice, and procedure
in all courts, the admission to the practice of law, and the Integrated
Bar.
[8]This aspect of
the power of the Court - its power of supervision - is particularly
relevant in this case since the JBC was created
"under the supervision of the Supreme Court," with the
"principal function of recommending appointees to the Judiciary."
In the same manner that the Court cannot dictate on the lower courts on
how they should decide cases except through the appeal and review
process provided by the Rules of Court, so also cannot the Court
intervene in the JBC's authority to discharge its principal function.
In this sense, the JBC is fully independent as shown by A.M. No.
03-11-16-SC or
Resolution Strengthening The Role and Capacity of the Judicial and Bar Council and Establishing the Offices Therein.
In both cases, however and unless otherwise defined by the Court (as in
A.M. No. 03-11-16-SC), the Court can supervise by ensuring the legality
and correctness of these entities' exercise of their powers as to means
and manner, and interpreting for them the constitutional provisions,
laws and regulations affecting the means and manner of the exercise of
their powers as the Supreme Court is the final authority on the
interpretation of these instruments. A prime example of the exercise of
the Court's power of supervision 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, A.M. No. 98-5-01-SC, November 9, 1998 (hereinafter referred to as
Valenzuela)
where the Court nullified the oath of office taken by Judge Valenzuela,
while at the same time giving its interpretation of how the election
ban against appointment operates on the Judiciary, thereby setting the
guidelines on how Section 15, Article VII is to be read and
interpreted. The
Valenzuela case shall be discussed more fully below.
a. The De Castro PetitionIn his petition for
certiorari and
mandamus, Arturo De Castro (in
G.R. 191002)
seeks the review of the action of the JBC deferring the sending to the
incumbent President of the list of nominees for the position of Chief
Justice, and seeks as well to compel the JBC to send this list to the
incumbent President when the position of Chief Justice becomes vacant.
He posits that the JBC's decision to defer action on the list is both a
grave abuse of discretion and a refusal to perform a
constitutionally-mandated duty that may be compelled by
mandamus.
[9]On its face, this petition fails to present any justiciable controversy that can be the subject of a ruling from this Court.
As a petition for certiorari,
it must first show as a minimum requirement that the JBC is a tribunal,
board or officer exercising judicial or quasi-judicial functions and is
acting outside its jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction.
[10] A petition for mandamus,
on the other hand, at the very least must show that a tribunal,
corporation, board or officer unlawfully neglects the performance of an
act which the law specifically enjoins as a duty."
[11]The
petition facially fails to characterize the JBC as a council exercising
judicial or quasi-judicial functions, and in fact states that the JBC
does not have any judicial function.
[12]
It cannot so characterize the JBC because it really does not exercise
judicial or quasi-judicial functions. It is not involved in the
determination of rights and obligations based on the constitution, laws
and regulations; it is an administrative body under the supervision of
the Supreme Court and was created principally to nominate appointees to
the Judiciary.
[13] As such, it deals solely with the screening of applicants who wish to have the privilege of applying for judicial positions.
From
the point of view of substance, the petition admits that the vacancy
for the position of Chief Justice will not occur until May 17, 2010,
and alleges that the JBC has resolved "to defer the decision to whom to
send the list of 3 nominees, whether to the incumbent President or to
the next President following the May 11, 2010 national elections in
view of Section 15, Article VII of the Constitution that bans
appointments during the election period,"
[14] citing various newspaper clippings
and the judicial notice of this Court.
[15]As suggested, we take
judicial notice
of the JBC action on the nomination process for the position of Chief
Justice, as circulated in the media and as evidenced by official JBC
records, and we note that the JBC has taken preliminary steps but not
conclusive action on the submission of a list of nominees for the
position of Chief Justice.
[16] So far, the JBC has announced the forthcoming vacancy, the opening of the position to applicants,
[17] the announcement of nominees, and the invitation for comments.
[18]
These are confirmed in the JBC's Comment dated February 25, 2010 which
further states that "the next stage of the process will be the public
interview of the candidates, and the preparation of the shortlist of
candidates have yet to be undertaken.. ..including the interview of the
constitutional experts as may be needed."
[19] Thus, this Court is fully aware, based
on its official knowledge that the petition cites,
of the extent of JBC developments in the nomination process, and the
petition cannot invoke our judicial notice to validly allege that the
JBC has deferred action on the matter. For the petition insist that a
deferment has taken place is to mislead this Court on a matter that is
within its official knowledge.
Neither the Constitution nor the Rules of Procedure of the JBC
[20]
categorically states when a list of nominees for a vacant Supreme Court
position shall be submitted to the President, although the Constitution
gives the President 90 days within which to fill the vacancy.
[21]
This presidential deadline implies that the JBC should submit its list
of nominees before, or at the latest, on the day the vacancy
materializes so as not to shorten the 90-day period given to the
President within which to act.
Given these timelines and the May
17, 2010 vacancy date - considered with the allegations regarding the
nature of the JBC's functions and its actions that we are asked to
judicially notice - the De Castro petition filed on February 9, 2010
clearly does not present a justiciable case for the issuance of a writ
of
certiorari. The petition cannot make an incorrect and
misleading characterization of the JBC action, citing our judicial
notice as basis, and then proceed to claim that grave abuse of
discretion has been committed. The study of the question of submitting
a list to the President in the JBC's step-by-step application and
nomination process is not a grave abuse of discretion simply because
the petition calls it so for purposes of securing a justiciable case
for our consideration.
[22]Since
the obligation to submit a list will not accrue until immediately
before or at the time the vacancy materializes (as the petition's
prayer in fact admits), no duty can likewise be said to have as yet
been neglected or violated to serve as basis for the special civil
action of
mandamus. The JBC's study of the applicable
constitutional issue, as part of the JBC's nomination process, cannot
be "tantamount to a refusal to perform its constitutionally-mandated
duty."
Presently, what exists is a purely potential controversy
that has not ripened into a concrete dispute where rights have been
violated or can already be asserted.In these lights, the
Court should dismiss the De Castro petition outright. Similarly, the
oppositions filed by way of intervening in and anchored on the De
Castro petition should similarly be dismissed. b. The Peralta Petition.John G. Peralta's petition (
G.R. 191 149) is likewise for
certiorari and
mandamus.
Like De Castro's, he failed to allege that the JBC exercises judicial
or quasi-judicial functions - a must in any petition for
certiorari. In
fact the Peralta petition can be described as an imperfect carbon copy
of De Castro's petition since it similarly asks for the "review of the
JBC action in deferring to transmit to the incumbent President the list
of nominees for appointment of a new Chief Justice, and to compel the
JBC to send the same to the incumbent President for appointment of a
Chief Justice, when the position becomes vacant upon the mandatory
retirement of the Honorable Chief Justice Reynato S. Puno."
Peralta
only differs from De Castro because it does not allege "deferment" on
the basis of media reports and judicial notice; instead, it attaches
the January 18, 2010 resolution of the JBC as Annex "A" and cites this
as a basis. An examination of Annex "A," however, shows that the JBC
did not in fact resolve to defer the submission of the list of
nominees; the JBC merely stated that -
"As to the time to submit
this shortlist to the proper appointing authority, in light of the
Constitution, existing laws and jurisprudence, the JBC welcomes and
will consider all view on the matter." This is not a deferment,
nor is it a refusal to perform a duty assigned by law as the duty to
submit a list of nominees will not mature until a vacancy has or is
about to occur.
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 Constitutional 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.
As we did with the
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 PetitionThe 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 Court
[25]
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 to the election. The Palace forwarded the judges' appointments to
the Court, thus confronting Chief Justice Narvasa with the question of
whether - given the election ban under Section 15, Article VII that
prima facie
applies - he should transmit the appointment papers to the appointed
judges so they could take their oaths in accordance with existing
practice. At that point, the Court decided to treat the matter as an
"administrative matter" that was ripe for adjudication.
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. case 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.
[26]
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 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 between
the Executive and the Judiciary on the matter; and the need to "avoid
any possible polemics concerning the matter."
[27] 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.
An undeniable feature of the Mendoza petition, compared to
Valenzuela,
is its lack of any clear and specific point where an actual actionable
case arose (the appointment of two RTC judges during the election ban
period) calling for a determination of how the Chief Justice and the
Court should act. The Mendoza petition, however, does not look up to
the Court's supervisory authority over lower court personnel pursuant
to Section 6 of Article VIII of the Constitution, in the way the Court
did in
Valenzuela.
Expressly, the Mendoza petition looks up to the Court's supervisory authority over the JBC, an authority that the Court in fact asserted in
Valenzuela when, in the exercise of
"its power of supervision over the Judicial and Bar Council," it "INSTRUCTED" the JBC
"to
defer all actions on the matter of nominations to fill up the lone
vacancy in the Supreme Court or any other vacancy until further
orders." From the time of
Valenzuela up to the
present, the governing law and the relationships between the Court and
the JBC have not changed; the supervisory relationship still exists
full strength. The JBC is now in fact waiting for the Court's action on
how it regards the
Valenzuela ruling - whether the Court will
reiterate, modify or completely abandon it. The JBC expressly admitted
its dilemna in its Comment when it said:
"Since the Honorable Court
is the final interpreter of the Constitution, the JBC will be guided by
its decision in these consolidated Petitions and Administrative Matter."
Under these plain terms, the JBC recognizes that a controversy exists
on the issue of submitting a shortlist to the President and it will not
act except with guidance from this Court.
This is a point no less critical, from the point of view of supervision, than the appointment of the two judges during the election ban period in Valenzuela. That the JBC has taken this stance is not surprising given the two petitions for prohibition filed by Jaime N. Soriano (
G.R. No. 191032) and Atty. Amador Z. Tolentino, Jr., (
G.R. No. 191342) that, on their face, show a cause of action ripe for adjudication.
d.1 The Soriano and Tolentino PetitionsSoriano
seeks to bar the JBC from continuing the selection processes on the
ground that the Supreme Court, not the President, appoints the Chief
Justice. Tolentino, on the other hand, seeks the issuance of a writ of
prohibition under Rule 65 of the 1997 Rules of Court, among others, to
enjoin and restrain the JBC from submitting a list of nominees for
judiciary positions to the incumbent President, on the ground that an
existing election ban against appointments is in place under Section
15, Article VII of the Constitution.
In the simplest terms, the JBC - by its own admission in its Comment and by Soriano's
[28] and Tolentino's
[29]
own admissions in their petitions - is now in the process of preparing
its submission of nominees for the vacancy to be created by the
retirement of the incumbent Chief Justice, and has already completed
the initial phases of this preparation. Soriano and Tolentino want to
stop this process and compel the JBC to immediately discontinue its
activities, apparently on the theory that nomination is part of the
appointment process
While their cited grounds and the intrinsic
merits of these grounds vary, the Soriano and Tolentino petitions, on
their faces, present actual justiciable controversies that are ripe for
adjudication. Section 15, Article VII of the Constitution embodies a
ban against appointments by the incumbent President two months before
the election up to the end of her term. A ruling from this Court (
Valenzuela)
is likewise in place confirming the validity of this ban against the
Judiciary, or at least against the appointment of lower court judges. A
vacancy in the position of Chief Justice will occur on May 17, 2010,
within the period of the ban, and the JBC is admittedly preparing the
submission of its list of nominees for the position of Chief Justice to
the President. Under the terms of Section 15, Article VII and the
obtaining facts, a
prima facie case exists supporting the petition for violation of the election ban.
d.2. Supervision over the JBC.That
the JBC - now under a different membership - needs guidance on the
course of action it should take on the constitutional issues posed, can
best be understood when the realities behind the constitutional
provisions are examined.
A
first reality is that the JBC cannot,
on its own due to lack of the proper authority,
determine the appropriate course of action to take under the
Constitution. Its principal function is to recommend appointees to the
Judiciary and it has no authority to interpret constitutional
provisions, even those affecting its principal function; the authority
to undertake constitutional interpretation belongs to the courts alone.
A
second reality
is that the disputed constitutional provisions do not stand alone and
cannot be read independently of one another; the Constitution and its
various provisions have to be read and interpreted as one seamless
whole,
[30] giving sufficient emphasis to every aspect in accordance with the hierarchy of our constitutional values.
The
disputed provisions should be read together and, as reflections of the
will of the people, should be given effect to the extent that they
should be reconciled.The
third reality, closely related to the second, is that in resolving the coverage of the election ban
vis-à-vis
the appointment of the Chief Justice and the Members of the Court,
provisions of the Constitution other than the disputed provisions must
be taken into account. In considering when and how to act, the JBC has
to consider that:
1. The President has a term of six years which begins at noon of June 30 following the election, which implies that the outgoing President remains President up to that time. (Section 4, Article VII).
The President assumes office at the beginning of his or her term, with
provision for the situations where the President fails to qualify or is
unavailable at the beginning of his term (Section 7, Article VII).
2. The Senators and the Congressmen begin their respective terms also at midday of June 30 Sections 4 and 7, Article VI). The Congress convenes on the 4th Monday of July for its regular session, but the President may call a special session at any time. (Section 15, Article VI)
3. The Valenzuela case
cited as authority for the position that the election ban provision
applies to the whole Judiciary, only decided the issue with respect to
lower court judges, specifically, those covered by Section 9, Article
VIII of the Constitution. Any reference to the filling up of vacancies
in the Supreme Court pursuant to Section 4(1), Article VIII constitutes
obiter dictum as this issue was not directly in issue and was not ruled upon.
These provisions and interpretation of the
Valenzuela ruling
- when read together with disputed provisions, related with one
another, and considered with the May 17, 2010 retirement of the current
Chief Justice - bring into focus certain unavoidable realities, as
follows:
1. If the election ban
would apply fully to the Supreme Court, the incumbent President cannot
appoint a Member of the Court beginning March 10, 2010, all the way up
to June 30, 2010.
2. The retirement of the incumbent Chief Justice - May 17, 2010 - falls within the period of the election ban. (In
an extreme example where the retirement of a Member of the Court falls
on or very close to the day the election ban starts, the Office of the
Solicitor General calculates in its Comment that the whole 90 days
given to the President to make appointment would be covered by the
election ban.)
3. Beginning May 17, 2010, the Chief Justice
position would be vacant, giving rise to the question of whether an
Acting Chief Justice can act in his place. While this is essentially a
Supreme Court concern, the Chief Justice is the ex officio Chair of the JBC; hence it must be concerned and be properly guided.
4.
The appointment of the new Chief Justice has to be made within 90 days
from the time the vacancy occurs, which translates to a deadline of
August 15, 2010.
5. The deadline for the appointment is fixed
(as it is not reckoned from the date of submission of the JBC list, as
in the lower courts) which means that the JBC ideally will have to make
its list available at the start of the 90-day period so that its
process will not eat up the 90-day period granted the President.
6.
Afternoon of June 30, 2010, the JBC representation from Congress would
be vacant; the current representatives' mandates to act for their
principals extend only to the end of their present terms; thus, the JBC
shall be operating at that point at less than its full membership.
7. Congress will not convene until the 4th
Monday of July, 2010, but would still need to organize before the two
Houses of Congress can send their representatives to the JBC - a
process may extend well into August, 2010.
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 and covers the act of appointment; the
prohibition is not against the JBC in the performance of its function
of "recommending appointees to the Judiciary" - an act that is one step
away from the act of making appointments.
d.3. Conclusion on the Mendoza PetitionGiven
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 the 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.
[31]To summarize the preliminary considerations of locus standi and justiciability and the outstanding issues for resolution,
the main issue in these consolidated cases continues to be whether
Section 15, Article VII of the Constitution limiting the authority of
the President of the Philippines to exercise her power of appointment
shall prevail over the mandate, provided under Section 4(1) and 9,
Article VIII, that appointments to the Supreme Court shall be within 90
days from the occurrence of the vacancy, and within 90 days from the
JBC's submission of its list of nominees for the lower courts. A
sub-issue is the continued effectiveness and strength of the
Valenzuela case as guide and precedent in resolving the above issue.
All
these should be read in the context of the petitions for prohibition
and the Mendoza A.M. petition, as the De Castro and the PHILCONSA
petitions suffer from lack of justiciability and prematurity.III. The Merits of the Petitionsa. The Soriano Petition.The
Soriano petition presents a very novel interpretation of Section 9,
Article VIII in its position that the authority to appoint the Chief
Justice is lodged in the Court, not in the President.
The correctness of this reading of the law is contradicted by both history and by the law itself.
History
tells us that, without exception, the Chief Justice of the Supreme
Court has always been appointed by the head of the Executive
Department. Thus, Chief Justices Cayetano Arellano, Victorino Mapa,
Manuel Araullo, Ramon Avancena, Jose Abad Santos, Jose Yulo, Manuel
Moran and all the Chief Justices after Philippine independence were
appointed by the Chief Executive. The only difference in their
respective appointments is the sovereignty under which they were
appointed.
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 First Division - but even as Chair is counted in the total membership of the
En Banc
or the Division for all purposes, particularly of quorum. Thus, at the
same time that Section 4(1) speaks of a "Supreme Court. . . composed of
one Chief Justice and fourteen Associate Justices," it likewise calls
all of them Members in defining how they will 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.
b. The Tolentino and Mendoza Petitions; the OSG and JBC CommentsThis is only a Separate Opinion, not a
ponencia,
and rather than recite or tabulate the various positions taken in these
submissions, I shall instead discuss the issues based on
topically
arranged subdivisions and introduce the various positions as arguments,
for or against, without always naming the source. This is solely for
ease of presentation, clarity and continuity rather than for any
devious reason.
b.1. Does a conflict of provisions textually exist?No
need exists to further recite Section 15, Article VII, on the one hand,
and Sections 4(1) and 9, Article VIII, on the other, as they are
already quoted at the start of this Opinion. I do not believe any of
the parties, though, will dispute that a conflict exists even from the
text of these provisions alone.
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 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
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
no immediate appointment was ever made to the Court for the replacement
of retired Justice Ricardo Francisco as the JBC failed to meet on the
required nominations prior to the onset of the election ban.
From this perspective, it appears clear to me that
Valenzuela should be read and appreciated for what it is - a ruling made
on the basis of the Court's supervision over judicial personnel
that upholds the election ban as against the appointment of lower court
judges appointed pursuant to the period provided by Section 9 of
Article VIII. Thus,
Valenzuela's application to the filling up of a vacancy in the Supreme Court is a mere
obiter dictum
as the Court is largely governed by Section 4(1) with respect to the
period of appointment. The Section 4(1) period, of course and as
already mentioned above, has impact uniquely its own and different from
that created by the period provided for the lower court under Section 9.
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. Peralta 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, Peralta is likewise mistaken in his appeal to the principle of
stare decisis.
The stability of judgments is indeed a glue that 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.
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. The Supreme Court's review of rulings and their binding effects
is a continuing one so that a ruling in one era may be declared by the
Court at some future time to be no longer true and should thus be
abandoned and changed. The best and most unforgettable example of this
kind of change happened in the United States when the US Supreme Court
overturned the ruling in
Plessy v. Fergusson[33]
that upheld the constitutionality of racial segregation under the
"separate but equal" doctrine. After half a century, the US Court
completely abandoned this ruling in the now famous
Brown v. Board of Education when it ruled that separate but equal is inherently unequal in the context of public education.
[34] I mention this, if only as a reminder to 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.
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.
The separate realities that Section 15, Article
VII and Section 4(1) bring to the fore now confront us with the
question of prioritizing our constitutional values in terms of two
provisions that effectively operate in their separate spheres, but
which conflict when they directly confront one another. The direct
question is: should we really implement Section 15 above everything
else, even at the expense of having an incomplete Supreme Court, or
should we recognize that both provisions should be allowed to operate
within their own separate spheres with one provision being an exception
to the other, instead of saying that one provision should absolutely
prevail over the other?
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 appointments to the Supreme Court.
In
the first place, Section 4(1) covers only the appointment of 15
Members, not in their totality, but singly and individually as Members
disappear from the Court and are replaced. Thus, the evil that the
Aytona case
[35] sought to remove - mass midnight appointments - will not be present.
Secondly,
partisanship is hardly a reason that would apply to the Supreme Court
except when the Members of the Court individually act in violation of
their oaths or directly transgress our graft and corruption laws. Let
it be remembered that the Constitution itself has entrusted to the
Court the final and definitive recourse in election contest involving
the President, the Vice-President and Members of Congress. Because of
this reposed trust on the Supreme Court as a body, reasons of
partisanship can hardly be a reason to systemically place the whole
Supreme Court under a ban on appointments during the election period.
Of
course, partisanship is an objection that can apply to individual
Members of the Court and even to the applicants for the position of
Chief Justice. But this is a different question that should not result
in placing the system of appointments to the Court within the coverage
of the election ban; objections
personal to individual Members and to individual applicants
are matters addressed to the JBC and to the final appointing authority
- the President. It is for reasons of these possible individual
objections that the JBC and even the Office of the President are open
to comments and objections.
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 shall take place. Thus, after every election to be held in May, a
turnover of power is mandated on the following 30
th of June for all elective officials.
For
the Supreme Court where continuity is by the appointment of a
replacement, the Constitution requires that the replacement Member of
the Court, including the Chief Justice, should be appointed within 90
days from the occurrence of the vacancy. This is the sense of urgency
that the Constitution imparts and is far different from the appointment
of the justices and judges of the lower courts where the requirement is
90 days from the JBC's submission of its list. This constitutional
arrangement is what the application of Section 15, Article VII to the
appointment of Members of the Supreme Court will displace.
The
Peralta petition argues that the appointment of a Chief Justice is not
all that important because the law anyway provides for an Acting Chief
Justice. While this is arguably true, Peralta misunderstands the true
worth of a duly appointed Chief Justice. He forgets, too, that a
Supreme Court without a Chief Justice in place is not a whole Supreme
Court; it will be a Court with only 14 members who would act and vote
on all critical matters before it.
The importance of the
presence of one Member of the Court can and should never be
underestimated, particularly on issues that may gravely affect the
nation. Many a case has been won or lost on the basis of one vote. On
an issue of the constitutionality of a law, treaty or statute, a tie
vote - which is possible in a 14 member court - means that the
constitutionality is upheld. This was our lesson in
Isagani Cruz v. DENR Secretary.
[36]More
than the vote, Court deliberation is the core of the decision-making
process and one voice is less is not only a vote less but a contributed
opinion, an observation, or a cautionary 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:
Mr. De Castro: I understand that our justices now in the Supreme Court, together with the Chief Justice, are only 11.
Mr. Concepcion: Yes.
Mr. De Castro: And the second sentence of this subsection reads: Any vacancy shall be filled within ninety days from the occurrence thereof."
Mr. Concepcion: That is right.
Mr. De Castro: Is this a now a mandate to the executive to fill the vacancy.
Mr. Concepcion: That is right. That is borne out of the fact that in the past 30 years, seldom has the Court had a complete complement.
This exchange, to my mind, removes any remaining doubt about the framers' recognition of the need to always have a full Court.
b.3. Construction of the Disputed Provisions A notable aspect of the
Valenzuela
ruling in the context of constitutional interpretation, is its
conclusion that in a conflict between two provisions - one in the
Article on the Executive Department and the other an Article in the
Judicial Department - one of them should completely give way and the
other should prevail. This is a very unusual approach in
interpretation, particularly if the apparently conflicting provisions
are from the Constitution - an instrument that has painstakingly been
deliberated upon by the best and the brightest minds in the country.
For, the rule in constitutional interpretation is that the constitution
must be appreciated and interpreted as one single instrument, with
apparently conflicting provisions reconciled and harmonized in a manner
that will give all of them full force and effect.
[38]Where, as in
Valenzuela,
the Chief Justice of the Supreme Court, no less, appeared to have given
up the benefit of an immediate appointment of Members of the Supreme
Court, then extremely compelling reasons must have driven the Court to
its conclusion. I fully understood though the former Chief Justice's
conclusion in this case when I realized that he was not effectively
ruling on Section 4(1) of Article VIII, and was in fact ruling on a
case involving lower court judges.
For indeed, the reasons the former Chief Justice cited in
Valenzuela justify
the application of the Section 15, Article VII as against the rule on
appointment of lower court judges under Section 9, Article VIII. As I
have shown above, Section 9 does not impose a hard and fast rule on the
period to be observed, apparently because the urgency of the
appointment may not be as great as in the appointment of Members of the
Supreme Court. The period for appointment can move at the discretion of
the JBC, although the exercise of this discretion also carries its own
butt-in and implicit limits.
The former Chief Justice's reason weightier reason arose from the
Aytona
where mass appointments were recognized as an evil that could affect
the integrity of our elections. Because of the number of appointments
that may currently be involved if appointments to lower courts are
allowed before the May 2010 election (
around 537 vacancies at a
24.5% vacancy rate at the first and second level courts according to
the figures of the Mendoza petition)
[39]
and the power and influence judges may exert over their local
communities, an exemption from the election ban may indeed bring about
(or at least give the appearance of bringing about) the evils that the
framers of the Constitution and this Court itself sought to remedy
under Section 15, Article VII and the
Aytona decision, respectively.
For this reason, I do not disagree with
Valenzuela for its ruling on lower court judges; Section 15, Article VII may indeed prevail over Section 9, Article VIII.
In
contrast with this conclusion, an interpretation that Section 15,
Article VII will similarly prevail over Section 4(1), Article VIII is
clearly misplaced. The structure, arrangement and intent of the
Constitution and the public policy reasons behind them simply speak
against the interpretation that appointments of Members of the Court
should be subject to the election ban. These are all discussed above
and need not be repeated here.
Principles of constitutional
interpretation, too, militate against an interpretation that would give
primacy to one branch of government over another in the absence of very
compelling reasons. Each branch of government is in place for a
particular reason and each one should be given every opportunity to
operate to its fullest capacity and potential, again unless very
compelling reasons exist for the primacy of one over the other. No such
compelling reason so far exists or has been cited.
Based on the
values that the disputed provisions embody, what we need to balance are
the integrity of our electoral process and the protection needed to
achieve this goal, as against the Judiciary's need for independence and
strength enforced through a Supreme Court that is at its full strength.
To be sure, the nation and our democracy need one as well as the other,
for ultimately both contribute to our overall national strength,
resiliency, and stability. Thus, we must, to the extent possible, give
force and effect to both and avoid sacrificing one for the other.
To
do this and to achieve the policy of insulating our constitutional
process from the evils of vote-buying, influence peddling and other
practices that affect the integrity of our elections, while at the same
time recognizing the Judiciary's and the nation's need to have a full
Supreme Court immediately after a vacancy occurs, Section 4(1) of
Article VIII should be recognized as a narrow exception granted to the
Judiciary in recognition of its proven needs. This is a narrow
exception as the election ban of Section 15, Article VII, shall apply
with full force and effect on the appointment of lower court justices
and judges.
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:
- 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 or before the day before the retirement of the Chief Justice;
- in
the course of preparing its list of nominees, determine with certainty
the nominees' readiness to accept the nomination as well as the
appointment they may receive from the President, deleting from the list
the nominees who will refuse to confirm their full readiness to accept
without conditions either their nomination or their appointment, if
they will be appointed;
- proceed with its normal
processes for the preparation of the lists for the vacancies for the
lower courts, to be submitted to the Office of the President as soon as
the election ban on appointments is lifted; and
- in all other matters not otherwise falling under the above, conduct itself in accordance with this Decision.
In light of all the foregoing, I vote to:
- Dismiss the De Castro and Peralta petitions and for not being justiciability and for prematurity.
- Dismiss the Soriano and the Tolentino petitions for lack of merit.
- Dismiss all petitions and motions for interventions supporting or opposing the above petitions.
- Grant the Mendoza petition and declare for the JBC's guidance that:
- 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;
- 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.
[1] Roque v. Commission on Elections, G.R. No. 188456, September 10, 2009;
Garcillano v. House of Representatives, G.R. No. 170388, December 23, 2008;
David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489, 171424, May 3, 2006, 489 SCRA 160, 224;
Agan Jr. v. Philippine International Air Terminals Co., Inc., 450 Phil 744. 803-804 (2003);
Bayan v. Executive Secretary Zamora, 396 Phil 623, 548-650 (2000);
Kilosbayan, Incorporated v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110, 138;
Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. Nos. 78742, 79310, 79744, 79777, July 14, 1989, 175 SCRA 343 365; and
Araneta v. Dinglasan, 84 Phil 368, 373 (1949).
[2] Section 1, par. 2, Article VIII, CONSTITUTION.
[3] See:
Guingona, Jr., v. Court of Appeals, 354 Phil. 426 (1998); see also: Director of
Prisons v. Ang Cho Kio, 33 Phil. 494 (1970).
[4] Id.[5] Salonga v. Ernani Cruz Pano, et al., 219 Phil. 402, 429-430 (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 (2002).
[7] CONSTITUTION, Article VIII, Section, 6.
[8] Id., Article VIII, Section 5(5).
[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.
[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.
[20] JBC-009, October 18, 2000.
[21] CONSTITUTION, Article VIII, Section 4(1).
[22] See: allegation of grave abuse, De Castro petition, p.5.
[23]
Pursuant to Section 3, Rule 65 of the Rules of Court, a petition for
mandamus must allege the unlawful neglect to perform an act which the
law specifically enjoins as resulting from an office.
[24] CONSTITUTION, Article VIII, Section 8(1).
[25] Upon the retirement of Associate Justice Ricardo J. Francisco.
[26] CONSTITUTION, Article VIII, Section 5(5).
[27] Mendoza petition, pp. 5 and 6.
[28] Soriano petition, p. 4.
[29] Tolentino petition, p. 2
[30] Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 21, 1991, 194 SCRA 317, 330.
[31]
Under Section 1, Rule 63 of the Rules of Court, a petition for
declaratory relief is available only before breach or violation of the
deed or instrument whose terms are sought to be clarified.
[32] See:
Vargas v. Rilloraza, 80 Phil. 297, 342 (1948).
[33] 163 U.S. 537 (1896).
[34] 347 U.S. 483 (1954).
[35] Aytona v. Castillo, No. L-19313, January 19, 1962, 4 SCRA 1.
[36] 400 Phil. 940 (2000).
[37] CONSTITUTION, Article XI, Section 2(6).
[38] See:
Marcelino v. Cruz, No. L-42428, March 14, 1983, 121 SCRA 51.
[39] Mendoza petition, p. 3.