EN BANC

G.R. No. 191002 : March 17, 2010

ARTURO M. DE CASTRO, Petitioner, v. JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL - ARROYO, Respondents.

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G.R. No. 191032

JAIME N. SORIANO, Petitioner, v. JUDICIAL AND BAR COUNCIL (JBC), Respondent.

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G.R. No. 191057

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner, v. JUDICIAL AND BAR COUNCIL (JBC), Respondent.

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A.M. No. 10-2-5-SC

IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY, ESTELITO P. MENDOZA, Petitioner,

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G.R. No. 191149

JOHN G. PERALTA, Petitioner, v. JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.; NATIONAL UNION OF PEOPLE'S LAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its Immediate Past President, ATTY. ISRAELITO P. TORREON, and the latter in his own personal capacity as a MEMBER of the PHILIPPINE BAR; MITCHELL JOHN L. BOISER; BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES, JR.; CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT 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; WALDEN F. BELLO and LORETTA ANN P. ROSALES; WOMEN TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by YOLANDA QUISUMBING-JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON. Intervenors.

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G.R. No. 191342

ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY. ROLAND B. INTING (IBP Governor-Eastern Visayas), Petitioners, v. JUDICIAL AND BAR COUNCIL (JBC), Respondent.

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G.R. No. 191420

PHILIPPINE BAR ASSOCIATION, INC., Petitioner, v. JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO, Respondents.

CONCURRING OPINION

ABAD, J.:

SEPARATE OPINION:

NACHURA, J.:
BRION, J.:

DISSENTING OPINION:

CARPIO MORALES, J.:

CONCURRING OPINION:

ABAD, J.:

Chief Justice Reynato S. Puno will retire on May 17, 2010. Article VIII, Section 9¹c�fa 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 resolution²c�fa 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.chanroblesvirtua|awlibary

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.³c�fa 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.chanroblesvirtua|awlibary

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.⁴c�fa 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 Presidents term), a period of 112 days.

Issues to be addressed

Quite ably, the majority opinion already addressed the several issues raised by the petitions and the oppositions to them. I join that opinion and would add a few thoughts on what I believe to be the key issues in this case, namely:

cralaw1. Whether or not the case presents an actual controversy that is ripe for this Courts adjudication; and

2. 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 Peoples 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.chanroblesvirtua|awlibary

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.⁵c�fa The court will not act on an action for damages for a slap on the plaintiffs face if the defendant is still to deliver that slap. The law must have established a right which has in fact been violated.chanroblesvirtua|awlibary

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.⁶c�fa 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.⁷c�fa Those who have an interest in the fulfillment of this duty has the right to insist that it be done.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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 JBCs 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.chanroblesvirtua|awlibary

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 Justices replacement will span the tenure of the incumbent President (for 44 days) and her successor (for 46 days), but it is the incumbents call whether to exercise the power or pass it on.chanroblesvirtua|awlibary

Again, assuming as correct petitioners view that the ban on midnight appointments does not apply to the judiciary, the JBCs 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.chanroblesvirtua|awlibary

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,⁸c�fa to see to it that the JBC faithfully executes its duties as the Constitution requires of it.chanroblesvirtua|awlibary

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 Courts] 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 JBCs faithful compliance with the Constitution, resolve the issue of whether or not the ban on midnight appointments applies to the judiciary.chanroblesvirtua|awlibary

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,"⁹c�fa 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 Presidents power of appointment, it is this Courts 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.¹⁰c�fa

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.¹¹c�fa

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.chanroblesvirtua|awlibary

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 Presidents appointing power is not a small matter.

cralawFirst. 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.chanroblesvirtua|awlibary

Second. The JBC makes its own vetting rules and procedures. The Constitution of course provides for the qualifications of members of the judiciary¹²c�fa but this has not prevented the JBC from establishing grounds for disqualifying candidates, such as the pendency of administrative or criminal cases against them.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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:

cralawWe 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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

Thus, the incumbent President was forced to choose from the few names on the list that she had.chanroblesvirtua|awlibary

In reality, a Presidents 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 JBCs actions.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.

ROBERTO A. ABAD
Associate Justice

cralaw Endnotes:

cralaw¹c�fa 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.

²c�fa http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf.chanroblesvirtua|awlibary

³c�fa 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.chanroblesvirtua|awlibary

⁴c�fa 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.

⁵c�fa Article VIII, Section 1, 1987 Constitution of the Philippines.

⁶c�fa Id., Section 5.

⁷c�fa Id., Section 9 in relation to Section 4(1).

⁸c�fa Id., Section 8(1).

⁹c�fa 358 Phil. 896 (1998).

¹⁰c�fa Id. at 915-916.

¹¹c�fa 4 SCRA 1, 8 (1962).chanroblesvirtua|awlibary

¹²c�fa Section 7(1) and (3), Article VIII, 1987 Constitution of the Philippines.