12. DE CASTRO VS.

JBC

ARTURO M. DE CASTRO vs. JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA
MACAPAGAL ARROYO
G.R. No. 191002, March 17, 2010, BERSAMIN, J.:

FACTS:
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.

The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the
coming presidential elections on May 10, 2010.
These cases trace their genesis to the controversy that has arisen from the forthcoming compulsory
retirement of Chief Justice Puno on May 17, 2010, or seven days after the presidential election. Under
Section 4(1), in relation to Section 9, Article VIII, that vacancy shall be filled within ninety days from
the occurrence thereof from a list of at least three nominees prepared by the Judicial and Bar Council
for every vacancy. Also considering that Section 15, Article VII (Executive Department) of the
Constitution prohibits the President or Acting President from making appointments within two months
immediately before the next presidential elections and up to the end of his term, except temporary
appointments to executive positions when continued vacancies therein will prejudice public service or
endanger public safety.

The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling
up the position of Chief Justice. Conformably with its existing practice, the JBC automatically
considered for the position of Chief Justice the five most senior of the Associate Justices of the Court,
namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice
Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio
Eduardo B. Nachura. However, the last two declined their nomination through letters dated January 18,
2010 and January 25, 2010, respectively.

The OSG contends that the incumbent President may appoint the next Chief Justice, because the
prohibition under Section 15, Article VII of the Constitution does not apply to appointments in the
Supreme Court. It argues that any vacancy in the Supreme Court must be filled within 90 days from its
occurrence, pursuant to Section 4(1), Article VIII of the Constitution; that had the framers intended the
prohibition to apply to Supreme Court appointments, they could have easily expressly stated so in the
Constitution, which explains why the prohibition found in Article VII (Executive Department) was not
written in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII ample
restrictions or limitations on the Presidents power to appoint members of the Supreme Court to ensure
its independence from political vicissitudes and its insulation from political pressures, such as
stringent qualifications for the positions, the establishment of the JBC, the specified period within
which the President shall appoint a Supreme Court Justice.

A part of the question to be reviewed by the Court is whether the JBC properly initiated the process,
there being an insistence from some of the oppositors-intervenors that the JBC could only do so once
the vacancy has occurred (that is, after May 17, 2010). Another part is, whether the JBC may resume
its process until the short list is prepared, in view of the provision of Section 4(1), Article VIII, which
unqualifiedly requires the President to appoint one from the short list to fill the vacancy in the Supreme
Court (be it the Chief Justice or an Associate Justice) within 90 days from the occurrence of the
vacancy.

ISSUE: Whether the incumbent President can appoint the successor of Chief Justice Puno upon his
retirement.

HELD:
Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the
Supreme Court or to other appointments to the Judiciary.
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department), provides: Section 15. Two months immediately
before the next presidential elections and up to the end of his term, a President or Acting President
shall not make appointments, except temporary appointments to executive positions when continued
vacancies therein will prejudice public service or endanger public safety.
The other, Section 4 (1), Article VIII (Judicial Department), states: Section 4. (1). The Supreme Court
shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its
discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days
from the occurrence thereof.
Had the framers intended to extend the prohibition contained in Section 15, Article VII to the
appointment of Members of the Supreme Court, they could have explicitly done so. They could not
have ignored the meticulous ordering of the provisions. They would have easily and surely written the
prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of
Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such
specification was not done only reveals that the prohibition against the President or Acting President
making appointments within two months before the next presidential elections and up to the end of
the Presidents or Acting Presidents term does not refer to the Members of the Supreme Court.
Had the framers intended to extend the prohibition contained in Section 15, Article VII to the
appointment of Members of the Supreme Court, they could have explicitly done so. They could not
have ignored the meticulous ordering of the provisions. They would have easily and surely written the
prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of
Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such
specification was not done only reveals that the prohibition against the President or Acting President
making appointments within two months before the next presidential elections and up to the end of
the Presidents or Acting Presidents term does not refer to the Members of the Supreme Court.
Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the
power of the President to appoint. The fact that Section 14 and Section 16 refer only to appointments
within the Executive Department renders conclusive that Section 15 also applies only to the Executive
Department. This conclusion is consistent with the rule that every part of the statute must be
interpreted with reference to the context, i.e. that every part must be considered together with the
other parts, and kept subservient to the general intent of the whole enactment. It is absurd to assume
that the framers deliberately situated Section 15 between Section 14 and Section 16, if they intended
Section 15 to cover all kinds of presidential appointments. If that was their intention in respect of
appointments to the Judiciary, the framers, if only to be clear, would have easily and surely inserted a
similar prohibition in Article VIII, most likely within Section 4 (1) thereof.

Separate Opinion of Justice Brion:

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.

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 Judiciaryan act that is one step away from the act of making
appointments 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 Judiciaryan act that is one step away from the
act of making appointments.

According to him, Section 9, Article VIII 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.

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.

The fact, however, is that while the President can freely choose to appoint any person who meets the
basic
qualifications for a position in the Executive Department, he does not have such freedom of choice
when it comes to
appointments in the judiciary. In the latter case, the Constitution provides in Section 9 of Article VIII
that the
President can choose his appointee only from a JBC short list of its nominees.