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.

SEPARATE OPINION

BRION, J.:

SEPARATE OPINION:

NACHURA, J.:
BRION, J.:

DISSENTING OPINION:

CARPIO MORALES, J.:

CONCURRING OPINION:

ABAD, 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 Presidents term, but DISAGREE with the conclusion that the authority to appoint extends to the whole Judiciary.

I. Prefatory Statement

The debate, in and out of this Court, on the issues these consolidated cases pose, have been differently described to be at varying levels of severity and intensity. What we in Court do know is the multiplicity of petitions and interventions 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.chanroblesvirtua|awlibary

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:

cralawSection 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.

cralaw(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.chanroblesvirtua|awlibary

(3) The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and shall keep a record of its proceedings.chanroblesvirtua|awlibary

(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.chanroblesvirtua|awlibary

(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.

cralawSection 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.chanroblesvirtua|awlibary

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 & Justiciability

I completely agree with the ponencias 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,¹c�fa 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 Courts 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.chanroblesvirtua|awlibary

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 ponencias 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 Courts consideration of the main issue at hand.chanroblesvirtua|awlibary

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.²c�fa 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.³c�fa

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.⁴c�fa

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.⁵c�fa

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.chanroblesvirtua|awlibary

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.⁶c�fa Through these circulars, memoranda and administrative matters and cases, the Court likewise interprets laws relevant to its power of supervision.⁷c�fa 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.⁸c�fa

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 JBCs 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 Courts 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 Petition

In 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 JBCs 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.⁹c�fa

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.¹⁰c�fa 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."¹¹c�fa

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.¹²c�fa 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.¹³c�fa As such, it deals solely with the screening of applicants who wish to have the privilege of applying for judicial positions.chanroblesvirtua|awlibary

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,"¹⁴c�fa citing various newspaper clippings and the judicial notice of this Court.¹⁵c�fa

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.¹⁶c�fa So far, the JBC has announced the forthcoming vacancy, the opening of the position to applicants,¹⁷c�fa the announcement of nominees, and the invitation for comments.¹⁸c�fa These are confirmed in the JBCs 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."¹⁹c�fa 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.chanroblesvirtua|awlibary

Neither the Constitution nor the Rules of Procedure of the JBC²⁰c�fa 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.²¹c�fa 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.chanroblesvirtua|awlibary

Given these timelines and the May 17, 2010 vacancy date considered with the allegations regarding the nature of the JBCs 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 JBCs 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.²²c�fa

Since the obligation to submit a list will not accrue until immediately before or at the time the vacancy materializes (as the petitions 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 JBCs study of the applicable constitutional issue, as part of the JBCs 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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

John G. Peraltas petition (G.R. 191 149) is likewise for certiorari and mandamus. Like De Castros, 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 Castros 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.cra|aw"

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

The petition of The Philippine Constitutional Association (PHILCONSA, G.R. 191057) is for mandamus under Rule 65 of the Rules of Court.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.²³c�fa Like the De Castro petition, it only presents to the Court a potential controversy that has not ripened.chanroblesvirtua|awlibary

Consequently, the Court should rule that the PHILCONSA petition should be dismissed outright together with any intervention supporting or opposing this petition.

d. The Mendoza Petition

The Mendoza petition (A.M. 10-2-5-SC) is unique as even its docket case number will show; it is presented as an administrative matter for the Courts consideration pursuant to its power of supervision over judges and over the JBC,²⁴c�fa following the lead taken in the Valenzuela case (an A.M. case).chanroblesvirtua|awlibary

The cited Valenzuela case is rooted in a situation not far different from the present case; a vacancy in the Court²⁵c�fa 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.chanroblesvirtua|awlibary

An administrative matter that is entered in the Courts 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 Courts supervision over them arising from the Supreme Courts 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.²⁶c�fa An A.M. is a matter based on the Supreme Courts 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.chanroblesvirtua|awlibary

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."²⁷c�fa 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.chanroblesvirtua|awlibary

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 Courts 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 Courts 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.cra|aw"

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 Courts 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.chanroblesvirtua|awlibary

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 Petitions

Soriano 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.chanroblesvirtua|awlibary

In the simplest terms, the JBC by its own admission in its Comment and by Sorianos²⁸c�fa and Tolentinos²⁹c�fa 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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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,³⁰c�fa 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.chanroblesvirtua|awlibary

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:

cralaw1. 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).chanroblesvirtua|awlibary

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.

cralawThese 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:

cralaw1. 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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

6. After noon 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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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 Petition

Given the justiciable Soriano and Tolentino petitions that directly address the JBC and its activities, the impact of the above-outlined realities on the grant of a writ of prohibition, and the undeniable supervision that the Supreme Court exercises over the JBC as well as its role as the interpreter of the Constitution sufficiently compelling reason exists to recognize the Mendoza petition as a properly filed A.M. petition that should fully be heard in these proceedings to fully ventilate the supervisory aspect of the Courts relationship with the JBC and to reflect, once again, how this Court views the issues first considered in Valenzuela. The Courts supervision over the JBC, the latters 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.³¹c�fa

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 JBCs 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.chanroblesvirtua|awlibary

III. The Merits of the Petitions

a. The Soriano Petition.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.³²c�fa 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.chanroblesvirtua|awlibary

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 Comments

This 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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

The Valenzuela decision gives the full flavor of how the election ban issue arose because of Chief Justice Narvasas 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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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 Courts 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, Valenzuelas 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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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 Courts 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. Fergusson³³c�fa 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.³⁴c�fa 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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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 case³⁵c�fa sought to remove mass midnight appointments will not be present.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

Incidentally, the incumbent President is not up for re-election by operation of the Constitution so that a partisanship objection in the Presidents 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 Presidents 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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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 turn over of power is mandated on the following 30th of June for all elective officials.chanroblesvirtua|awlibary

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 JBCs 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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.³⁶c�fa

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.chanroblesvirtua|awlibary

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.³⁷c�fa 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.chanroblesvirtua|awlibary

The intent of the framers of the Constitution to extend to the Court a fixed period that will assure the nation that the Courts membership shall immediately be filled, is evidenced no less than by the Constitutional Commissions 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. ConcepcionL Yes.chanroblesvirtua|awlibary

Mr. De Castro: And the second sentence of this subsection reads: Any vacancy shall be filled within ninety days from the occurrence thereof.cra|aw"

Mr. Concepcion: That is right.

Mr. De Castro: Is this a now a mandate to the executive to fill the vacancy.chanroblesvirtua|awlibary

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.

cralawThis 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.³⁸c�fa

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 Justices 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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

The former Chief Justices 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)³⁹c�fa 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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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 Judiciarys 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.chanroblesvirtua|awlibary

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 Judiciarys and the nations 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 Courts ruling. The Court should therefore direct the JBC to:

cralawA. 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;

B. 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;

C. 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

D. 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:

1. Dismiss the De Castro and Peralta petitions and for not being justiciability and for prematurity.

2. Dismiss the Soriano and the Tolentino petitions for lack of merit.

3. Dismiss all petitions and motions for interventions supporting or opposing the above petitions.

4. Grant the Mendoza petition and declare for the JBCs guidance that:

cralawa. 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 Presidents consideration and action pursuant to Section 4(1), Article VIII ;

b. Reiterate our ruling in In re: Valenzuela and Vallarta that no other appointments of judges of the lower courts can be made within the election ban period, pursuant to Section 15, Article VII.

ARTURO D. BRION
Associate Justice

cralaw Endnotes:

cralaw¹c�fa 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 Agrariam Reform, G.R. Nos. 78742, 79310, 79744, 79777, July 14, 1989, 175 SCRA 343 365; and Araneta v. Dinglasan, 84 Phil 368, 373 (1949).

²c�fa Section 1, par. 2, Article VIII, CONSTITUTION.chanroblesvirtua|awlibary

³c�fa See: Guingona, Jr., v. Court of Appeals, 354 Phil. 426 (1998); see also: Director of Prisons v. Ang Cho Kio, 33 Phil. 494 (1970).

⁴c�fa Id.chanroblesvirtua|awlibary

⁵c�fa Salonga v. Ernani Cruz Pano, et al., 219 Phil. 402, 429-430 (1985).chanroblesvirtua|awlibary

⁶c�fa 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).

⁷c�fa CONSTITUTION, Article VIII, Section, 6.

⁸c�fa Id., Article VIII, Section 5(5).

⁹c�fa De Castro petition, p. 5.

¹⁰c�fa RULES OF COURT, Rule 65, Section 1.

¹¹c�fa RULES OF COURT, Rule 65, Section 3.

¹²c�fa De Castro petition, par. 8, page 5.

¹³c�fa See: Constitutional Provision on the JBC, pp. 4-5 of this opinion.

¹⁴c�fa De Castro petition, p. 3

¹⁵c�fa De Castro petition, p. 4

¹⁶c�fa Judicial notice is taken of the publications cited, as well as the records on which these publications are based.chanroblesvirtua|awlibary

¹⁷c�fa 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.chanroblesvirtua|awlibary

¹⁸c�fa 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.

¹⁹c�fa JBC Comment, dated Feb. 25, 2010, p. 6.

²⁰c�fa JBC-009, October 18, 2000.

²¹c�fa CONSTITUTION, Article VIII, Section 4(1).

²²c�fa See: allegation of grave abuse, De Castro petition, p.5.chanroblesvirtua|awlibary

²³c�fa 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.

²⁴c�fa CONSTITUTION, Article VIII, Section 8(1).

²⁵c�fa Upon the retirement of Associate Justice Ricardo J. Francisco.

²⁶c�fa CONSTITUTION, Article VIII, Section 5(5).

²⁷c�fa Mendoza petition, pp. 5 and 6.

²⁸c�fa Soriano petition, p. 4.

²⁹c�fa Tolentino petition, p. 2

³⁰c�fa Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 21, 1991, 194 SCRA 317, 330.chanroblesvirtua|awlibary

³¹c�fa 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.

³²c�fa See: Vargas v. Rilloraza, 80 Phil. 297, 342 (1948).

³³c�fa 163 U.S. 537 (1896).

³⁴c�fa 347 U.S. 483 (1954).

³⁵c�fa Aytona v. Castillo, No. L-19313, January 19, 1962, 4 SCRA 1.

³⁶c�fa 400 Phil. 940 (2000).

³⁷c�fa CONSTITUTION, Article XI, Section 2(6).chanroblesvirtua|awlibary

³⁸c�fa See: Marcelino v. Cruz, No. L-42428, March 14, 1983, 121 SCRA 51.

³⁹c�fa Mendoza petition, p. 3.