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.

DISSENTING OPINION

CARPIO MORALES, J.:

SEPARATE OPINION:

NACHURA, J.:
BRION, J.:

DISSENTING OPINION:

CARPIO MORALES, J.:

CONCURRING OPINION:

ABAD, J.:

"Although the Chief Justice is primus inter pares, he cannot legally decide a case on his own because of the Courts 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.cra|aw"

Associate Justice Renato C. Corona in
Complaint of Mr. Aurelio Indencia Arrienda
against Justice Puno, 499 Phil. 1, 14 (2005)

cralawPrimus 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.¹c�fa

The inclination to focus on the inter pares without due emphasis on the primus/prima²c�fa has spawned contemporary discourse that revives the original tug-of-war between domination and parity, which impasse the conceived maxim precisely intended to resolve.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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 period³c�fa does not extend to appointments in the judiciary, thereby reversing In re appointments of Hon. Valenzuela & Hon. Vallarta.⁴c�fa

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.chanroblesvirtua|awlibary

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 charters contents.chanroblesvirtua|awlibary

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 Secretary⁵c�fa 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 Constitutions 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.chanroblesvirtua|awlibary

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 Presidents 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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

Secondary aids may be consulted to remove, not to create doubt. AMINs 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.⁶c�fa (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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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,⁷c�fa 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.chanroblesvirtua|awlibary

Heeding Aytonas 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.

THE PRESIDENT: Commissioner Guingona is recognized.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.

THE PRESIDENT: Does the Committee accept?

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.

MR. GUINGONA: That is correct.

FR. BERNAS: Whereas, the other offices the Commissioner mentioned are independent offices.chanroblesvirtua|awlibary

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.

FR. BERNAS: At any rate, there are other checks as far as the appointment of those officers is concerned.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

FR. BERNAS: We leave the matter to the body for a vote.⁸c�fa (capitalization and emphasis supplied)

cralawThe clear intent of the framers is thus for the ban on midnight appointments to apply to the judiciary. The succeeding interpellations⁹c�fa suggest no departure from this intent.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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 ponencia

It 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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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 Presidents power of appointment during the prohibited period.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.¹⁰c�fa 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.chanroblesvirtua|awlibary

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.¹¹c�fa (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.¹²c�fa

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.chanroblesvirtua|awlibary

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 Regalados opinion, the Courts 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.chanroblesvirtua|awlibary

The line of reasoning is specious. If that is the case and for accuracys sake, we might as well reconvene all ConCom members and put the matter to a vote among them.chanroblesvirtua|awlibary

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.¹³c�fa (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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

IN FINE, all rules of statutory construction virtually revolt against the interpretation arrived at by the ponencia.

The 90-day period to fill a vacancy in the Supreme Court is suspended during the ban on midnight appointments

Although practically there is no constitutional crisis or conflict involved upon the retirement of the incumbent Chief Justice, the ponencia illustrates the inapplicability of the 90-day mandate to every situation of vacancy in the 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.chanroblesvirtua|awlibary

I submit that the more important and less complicated question is whether the 90-day period in Section 4(1) of Article VIII¹⁴c�fa runs during the period of prohibition in Section 15 of Article VII.chanroblesvirtua|awlibary

In response to that question, the ponencia declares that it is the Presidents "imperative duty to make an appointment of a Member of the Supreme Court within 90 days from the occurrence of the vacancyand that t]he failure by the President to do so will be a clear disobedience to the Constitution."¹⁵c�fa

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 controversy¹⁶c�fa ineluctably shows that the intent was not to strictly impose an inflexible timeframe.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

Considering also that Section 15 of Article VII is an express limitation on the Presidents 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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

Another such circumstance which could frustrate the ponencias 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.¹⁷c�fa Some might find this possibility remote, but then again, the situation at hand or the "absurdity"¹⁸c�fa of a 19-day overlapping vacuum may have also been perceived to be rare.chanroblesvirtua|awlibary

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.cra|aw"

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.chanroblesvirtua|awlibary

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.¹⁹c�fa

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.chanroblesvirtua|awlibary

Sustaining the view means²⁰c�fa 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 JBCs toil and time in the second nomination process are put to waste.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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,²¹c�fa confirmed by tradition,²²c�fa and settled by jurisprudence²³c�fa to be an internal matter.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

As a member of the Court, I strongly take exception to the ponencias implication that the Court cannot function without a sitting Chief Justice.chanroblesvirtua|awlibary

To begin with, judicial power is vested in one Supreme Court²⁴c�fa 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.chanroblesvirtua|awlibary

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 Courts 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.²⁵c�fa

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 Courts 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.chanroblesvirtua|awlibary

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.

CONCHITA CARPIO MORALES
Associate Justice

cralaw Endnotes:

cralaw¹c�fa Vide http://en.wikipedia.org/wiki/Primus_inter_pares (visited: March 10, 2010).

²c�fa Feminine ablative of primus (first among her equals).chanroblesvirtua|awlibary

³c�fa 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)

⁴c�fa 358 Phil. 896 (1998).chanroblesvirtua|awlibary

⁵c�fa 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.

⁶c�fa Id. at 601-603.

⁷c�fa No. L-19313, January 19, 1962, 4 SCRA 1, 8.chanroblesvirtua|awlibary

⁸c�fa Record of the 1986 Constitutional Commission, Vol. 2, July 31, 1986, RCC No. 44 (CD Format).chanroblesvirtua|awlibary

⁹c�fa 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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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.

MR. DAVIDE: To avoid any further complication, I would agree to delete "JUDICIARY.cra|aw"

MR. GUINGONA: Thank you.chanroblesvirtua|awlibary

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.chanroblesvirtua|awlibary

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).

cralaw¹⁰c�fa The Iloilo City Zoning Board of Adjustment & Appeals v. Gegato-Abecia Funeral Homes, Inc., 462 Phil. 803, 815 (2003).chanroblesvirtua|awlibary

¹¹c�fa Samson v. Court of Appeals, No. L-43182, November 25, 1986, 145 SCRA 654, 659.chanroblesvirtua|awlibary

¹²c�fa Pascual v. Pascual-Bautista, G.R. No. 84240, March 25, 1992, 207 SCRA 561, 568.chanroblesvirtua|awlibary

¹³c�fa 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.chanroblesvirtua|awlibary

¹⁴c�fa 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)

¹⁵c�fa Decision, p. 37.

¹⁶c�fa Infra note 18.chanroblesvirtua|awlibary

¹⁷c�fa 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.

¹⁸c�fa Vide Decision, p. 45.chanroblesvirtua|awlibary

¹⁹c�fa 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.cra|aw"

²⁰c�fa In which case the Courts complement remains incomplete with still 14 members.chanroblesvirtua|awlibary

²¹c�fa 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.chanroblesvirtua|awlibary

²²c�fa Since the time of Chief Justice Cayetano Arellano, this rule of succession has been observed throughout the Courts 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.chanroblesvirtua|awlibary

²³c�fa Cf. Brillantes, Jr. v. Yorac, G.R. No. 93867, December 18, 1990, 192 SCRA 358.

²⁴c�fa Constitution, Art. VIII, Sec. 1.chanroblesvirtua|awlibary

²⁵c�fa Complaint of Mr. Aurelio Indencia Arrienda against Justice Puno, 499 Phil. 1, 14-15 (2005).