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G. R. No.

191002
ARTURO M. DE CASTRO, Petitioner
vs
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL ARROYO, Respondents.

Facts

These cases trace their genesis to the controversy that has arisen from the forthcoming compulsory retirement of Chief
Justice Puno on May 17, 2010, or seven days after the presidential election. Under Section 4(1), in relation to Section 9,
Article VIII, that vacancy shall be filled within ninety days from the occurrence thereof from a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy.

On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the JBC, addressed a letter to the JBC,
requesting that the process for nominations to the office of the Chief Justice be commenced immediately.

In its January 18, 2010 meeting en banc, therefore, the JBC passed a resolution to start the process of filling up the position
of Chief Justice. As a result, the JBC opened the position of Chief Justice for application or recommendation, and published
for that purpose its announcement dated January 20, 2010.

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.

In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the following
candidates to invite the public to file their sworn complaint, written report, or opposition, if any, not later than February 22,
2010, to wit: Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales, Associate Justice
Leonardo-De Castro, Associate Justice Brion, and Associate Justice Sandoval.

Issue

Does the incumbent President have the power and authority to appoint during the election ban the successor of
Chief Justice Puno when he vacates the position of Chief Justice on his retirement on May 17, 2010?

**In Administrative Matter No. 10-2-5-SC,[5] petitioner Estelito M. Mendoza, a former Solicitor General, seeks a ruling from
the Court for the guidance of the JBC on whether Section 15, Article VII applies to appointments to the Judiciary.

Ruling of the Court

Locus Standi of Petitioners

The preliminary issue to be settled is whether or not the petitioners have locus standi.

The Court rules that the petitioners have each demonstrated adequate interest in the outcome of the controversy as to vest
them with the requisite locus standi. The issues before us are of transcendental importance to the people as a whole, and to
the petitioners in particular. Indeed, the issues affect everyone (including the petitioners), regardless of ones personal interest
in life, because they concern that great doubt about the authority of the incumbent President to appoint not only the
successor of the retiring incumbent Chief Justice, but also others who may serve in the Judiciary, which already suffers from
a far too great number of vacancies in the ranks of trial judges throughout the country.

In any event, the Court retains the broad discretion to waive the requirement of legal standing in favor of any petitioner when
the matter involved has transcendental importance, or otherwise requires a liberalization of the requirement.

Justiciability

We hold that the petitions set forth an actual case or controversy that is ripe for judicial determination. The reality is that the
JBC already commenced the proceedings for the selection of the nominees to be included in a short list to be submitted to
the President for consideration of which of them will succeed Chief Justice Puno as the next Chief Justice. Although the
position is not yet vacant, the fact that the JBC began the process of nomination pursuant to its rules and practices, although
it has yet to decide whether to submit the list of nominees to the incumbent outgoing President or to the next President,
makes the situation ripe for judicial determination, because the next steps are the public interview of the candidates, the
preparation of the short list of candidates, and the interview of constitutional experts, as may be needed.

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

The outcome will not be an abstraction, or a merely hypothetical exercise. The resolution of the controversy will surely settle
with finality the nagging questions that are preventing the JBC from moving on with the process that it already began, or that
are reasons persuading the JBC to desist from the rest of the process.

We need not await the occurrence of the vacancy by May 17, 2010 in order for the principal issue to ripe for judicial
determination by the Court. It is enough that one alleges conduct arguably affected with a constitutional interest, but
seemingly proscribed by the Constitution. A reasonable certainty of the occurrence of the perceived threat to a constitutional
interest is sufficient to afford a basis for bringing a challenge, provided the Court has sufficient facts before it to enable it to
intelligently adjudicate the issues. ]Herein, the facts are not in doubt, for only legal issues remain.

Substantive Merits

I
Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to
other appointments to the Judiciary

Two constitutional provisions are seemingly in conflict.

The first, Section 15, Article VII (Executive Department), provides:

Section 15. Two months immediately before the next presidential elections and up to the end of his term, a
President or Acting President shall not make appointments, except temporary appointments to executive
positions when continued vacancies therein will prejudice public service or endanger public safety.

The other, Section 4 (1), Article VIII (Judicial Department), states:

Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It
may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled
within ninety days from the occurrence thereof.

In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino and Inting, submit that the incumbent
President can appoint the successor of Chief Justice Puno upon his retirement on May 17, 2010, on the ground that the
prohibition against presidential appointments under Section 15, Article VII does not extend to appointments in the Judiciary.

The Court agrees with the submission.

First. 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.

Although Valenzuela came to hold that the prohibition covered even judicial appointments, it cannot be disputed that the
Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Thereby, the confirmation made
to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional
Commission, about the prohibition not being intended to apply to the appointments to the Judiciary, which confirmation
Valenzuela even expressly mentioned, should prevail.

Moreover, the usage in Section 4(1), Article VIII of the word shall an imperative, operating to impose a duty that may be
enforced should not be disregarded. Thereby, Sections 4(1) imposes on the President the imperative duty to make an
appointment of a Member of the Supreme Court within 90 days from the occurrence of the vacancy. The failure by the
President to do so will be a clear disobedience to the Constitution.
Consequently, prohibiting the incumbent President from appointing a Chief Justice on the premise that Section 15, Article VII
extends to appointments in the Judiciary cannot be sustained. A misinterpretation like Valenzuela should not be allowed to
last after its false premises have been exposed.

We reverseValenzuela.

Second. Section 15, Article VII does not apply as well to all other appointments in the Judiciary.

There is no question that one of the reasons underlying the adoption of Section 15 as part of Article VII was to eliminate
midnight appointments from being made by an outgoing Chief Executive in the mold of the appointments dealt with in the
leading case of Aytona v. Castillo. In fact, in Valenzuela, the Court so observed, stating that:

xxx it appears that Section 15, Article VII is directed against two types of appointments: (1) those
made for buying votes and (2) those made for partisan considerations. The first refers to those
appointments made within the two months preceding a Presidential election and are similar to those which
are declared election offenses in the Omnibus Election Code, viz.:

xxx

The second type of appointments prohibited by Section 15, Article VII consists of the so-called midnight
appointments. In Aytona v. Castillo, it was held that after the proclamation of Diosdado Macapagal as duly
elected President, President Carlos P. Garcia, who was defeated in his bid for reelection, became no more
than a caretaker administrator whose duty was to prepare for the orderly transfer of authority to the
incoming President.

Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that the Constitutional
Commission confined the prohibition to appointments made in the Executive Department. The framers did not need to extend
the prohibition to appointments in the Judiciary, because their establishment of the JBC and their subjecting the nomination
and screening of candidates for judicial positions to the unhurried and deliberate prior process of the JBC ensured that there
would no longer be midnight appointments to the Judiciary.

Also, the intervention of the JBC eliminates the danger that appointments to the Judiciary can be made for the purpose of
buying votes in a coming presidential election, or of satisfying partisan considerations. The experience from the time of the
establishment of the JBC shows that even candidates for judicial positions at any level backed by people influential with the
President could not always be assured of being recommended for the consideration of the President, because they first had
to undergo the vetting of the JBC and pass muster there. Indeed, the creation of the JBC was precisely intended to de-
politicize the Judiciary by doing away with the intervention of the Commission on Appointments.

Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the Judiciary was confirmed by then
Senior Associate Justice Regalado to the JBC itself when it met on March 9, 1998 to discuss the question raised by some
sectors about the constitutionality of xxx appointments to the Court of Appeals in light of the forthcoming presidential
elections. He assured that on the basis of the (Constitutional) Commissions records, the election ban had no application to
appointments to the Court of Appeals. This confirmation was accepted by the JBC, which then submitted to the President for
consideration the nominations for the eight vacancies in the Court of Appeals.

Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16) concern the appointing powers of
the President.

Section 14 speaks of the power of the succeeding President to revoke appointments made by an Acting President, and
evidently refers only to appointments in the Executive Department.

There is no law in the books that authorizes the revocation of appointments in the Judiciary. Prior to their mandatory
retirement or resignation, judges of the first and second level courts and the Justices of the third level courts may only be
removed for cause, but the Members of the Supreme Court may be removed only by impeachment.

Section 16 covers only the presidential appointments that require confirmation by the Commission on Appointments. Thereby,
the Constitutional Commission restored the requirement of confirmation by the Commission on Appointments after the
requirement was removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the restored requirement did
not include appointments to the Judiciary.

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.
Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the Judiciary further undermines the
intent of the Constitution of ensuring the independence of the Judicial Department from the Executive and Legislative
Departments.

Sixth. The argument has been raised to the effect that there will be no need for the incumbent President to appoint during the
prohibition period the successor of Chief Justice Puno within the context of Section 4 (1), Article VIII, because anyway there
will still be about 45 days of the 90 days mandated in Section 4(1), Article VIII remaining.

The argument is flawed, because it is focused only on the coming vacancy occurring from Chief Justice Punos retirement by
May 17, 2010. It ignores the need to apply Section 4(1) to every situation of a vacancy in the Supreme Court.

Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list is necessary at all for the
President, any President, to appoint a Chief Justice if the appointee is to come from the ranks of the sitting justices of the
Supreme Court.

Sec. 9, Article VIII says:

xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of at least
three nominees prepared by the Judicial and Bar Council for any vacancy. Such appointments need no
confirmation.
xxx

The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a non-member of the
Court aspiring to become one. It speaks of candidates for the Supreme Court, not of those who are already members or
sitting justices of the Court, all of whom have previously been vetted by the JBC.

Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief Justice?

The question is not squarely before us at the moment, but it should lend itself to a deeper analysis if and when circumstances
permit. It should be a good issue for the proposed Constitutional Convention to consider in the light of Senate President Juan
Ponce Enriles statement that the President can appoint the Chief Justice from among the sitting justices of the Court even
without a JBC list.

II
The Judiciary Act of 1948

The posture has been taken that no urgency exists for the President to appoint the successor of Chief Justice Puno,
considering that the Judiciary Act of 1948 can still address the situation of having the next President appoint the successor.

Section 12 of the Judiciary Act of 1948 states:

Section 12. Vacancy in Office of Chief Justice. In case of a vacancy in the office of Chief Justice of the
Supreme Court or of his inability to perform the duties and powers of his office, they shall devolve upon the
Associate Justice who is first in precedence, until such disability is removed, or another Chief Justice is
appointed and duly qualified. This provision shall apply to every Associate Justice who succeeds to the
office of Chief Justice.

The provision calls for an Acting Chief Justice in the event of a vacancy in the office of the Chief Justice, or in the event that
the Chief Justice is unable to perform his duties and powers. In either of such circumstances, the duties and powers of the
office of the Chief Justice shall devolve upon the Associate Justice who is first in precedence until a new Chief Justice is
appointed or until the disability is removed.

We cannot agree with the posture.

For sure, the framers intended the position of Chief Justice to be permanent, not one to be occupied in an acting or
temporary capacity. In relation to the scheme of things under the present Constitution, Section 12 of the Judiciary Act of 1948
only responds to a rare situation in which the new Chief Justice is not yet appointed, or in which the incumbent Chief Justice
is unable to perform the duties and powers of the office.

III
Writ of mandamus does not lie against the JBC
May the JBC be compelled to submit the list of nominees to the President?

The duty of the JBC to submit a list of nominees before the start of the Presidents mandatory 90-day period to appoint is
ministerial, but its selection of the candidates whose names will be in the list to be submitted to the President lies within the
discretion of the JBC. The object of the petitions for mandamus herein should only refer to the duty to submit to the President
the list of nominees for every vacancy in the Judiciary, because in order to constitute unlawful neglect of duty, there must be
an unjustified delay in performing that duty. For mandamus to lie against the JBC, therefore, there should be an unexplained
delay on its part in recommending nominees to the Judiciary, that is, in submitting the list to the President.

A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts,
in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the
exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a
duty upon a public officer and gives him the right to decide how or when the duty shall be
performed, such duty is discretionary and not ministerial. The duty is ministerial only when the
discharge of the same requires neither the exercise of official discretion or judgment.

Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a writ of mandamus against the
JBC. The actions for that purpose are premature, because it is clear that the JBC still has until May 17, 2010, at the latest,
within which to submit the list of nominees to the President to fill the vacancy created by the compulsory retirement of Chief
Justice Puno.

IV
Writ of prohibition does not lie against the JBC

In light of the foregoing disquisitions, the conclusion is ineluctable that only the President can appoint the Chief Justice.
Hence, Sorianos petition for prohibition in G.R. No. 191032, which proposes to prevent the JBC from intervening in the
process of nominating the successor of Chief Justice Puno, lacks merit.

WHEREFORE, the Court:

1. Dismisses the petitions for certiorari and mandamus n G.R. No. 191002 and G.R. No. 191149, and the petition for
mandamus in G.R. No. 191057 for being premature;

2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of merit; and

3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council:

(a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created by the
compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010;

(b) To prepare the short list of nominees for the position of Chief Justice;

(c) To submit to the incumbent President the short list of nominees for the position of Chief Justice on
or before May 17, 2010; and

(d) To continue its proceedings for the nomination of candidates to fill other vacancies in the Judiciary
and submit to the President the short list of nominees corresponding thereto in accordance with this
decision.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice