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JBC Prohibition under Section 15, Article VII does not apply to
appointments to fill a vacancy in the Supreme Court or to other
MARCH 28, 2013 ~ VBDIAZ appointments to the Judiciary.
ARTURO M. DE CASTRO vs. JUDICIAL AND BAR COUNCIL Two constitutional provisions are seemingly in conflict.
(JBC) and PRESIDENT GLORIA MACAPAGAL – ARROYO
G.R. No. 191002, March 17, 2010 The first, Section 15, Article VII (Executive Department), provides:
Section 15. Two months immediately before the next presidential
FACTS: The compulsory retirement of Chief Justice Reynato S. elections and up to the end of his term, a President or Acting
Puno by May 17, 2010 occurs just days after the coming President shall not make appointments, except temporary
presidential elections on May 10, 2010. appointments to executive positions when continued vacancies
therein will prejudice public service or endanger public safety.
These cases trace their genesis to the controversy that has arisen
from the forthcoming compulsory retirement of Chief Justice Puno The other, Section 4 (1), Article VIII (Judicial Department), states:
on May 17, 2010, or seven days after the presidential election. Section 4. (1). The Supreme Court shall be composed of a Chief
Under Section 4(1), in relation to Section 9, Article VIII, that Justice and fourteen Associate Justices. It may sit en banc or in its
“vacancy shall be filled within ninety days from the occurrence discretion, in division of three, five, or seven Members. Any
thereof” from a “list of at least three nominees prepared by the vacancy shall be filled within ninety days from the occurrence
Judicial and Bar Council for every vacancy.” Also considering that thereof.
Section 15, Article VII (Executive Department) of the Constitution
prohibits the President or Acting President from making Had the framers intended to extend the prohibition contained in
appointments within two months immediately before the next Section 15, Article VII to the appointment of Members of the
presidential elections and up to the end of his term, except Supreme Court, they could have explicitly done so. They could not
temporary appointments to executive positions when continued have ignored the meticulous ordering of the provisions. They would
vacancies therein will prejudice public service or endanger public have easily and surely written the prohibition made explicit in
safety. Section 15, Article VII as being equally applicable to the
appointment of Members of the Supreme Court in Article VIII itself,
The JBC, in its en banc meeting of January 18, 2010, unanimously most likely in Section 4 (1), Article VIII. That such specification was
agreed to start the process of filling up the position of Chief Justice. 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 President’s
Conformably with its existing practice, the JBC “automatically or Acting President’s term does not refer to the Members of the
considered” for the position of Chief Justice the five most senior of Supreme Court.
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. Had the framers intended to extend the prohibition contained in
Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura. Section 15, Article VII to the appointment of Members of the
However, the last two declined their nomination through letters Supreme Court, they could have explicitly done so. They could not
dated January 18, 2010 and January 25, 2010, respectively. have ignored the meticulous ordering of the provisions. They would
The OSG contends that the incumbent President may appoint the have easily and surely written the prohibition made explicit in
next Chief Justice, because the prohibition under Section 15, Section 15, Article VII as being equally applicable to the
Article VII of the Constitution does not apply to appointments in the appointment of Members of the Supreme Court in Article VIII itself,
Supreme Court. It argues that any vacancy in the Supreme Court most likely in Section 4 (1), Article VIII. That such specification was
must be filled within 90 days from its occurrence, pursuant to not done only reveals that the prohibition against the President or
Section 4(1), Article VIII of the Constitution; that had the framers Acting President making appointments within two months before
intended the prohibition to apply to Supreme Court appointments, the next presidential elections and up to the end of the President’s
they could have easily expressly stated so in the Constitution, or Acting President’s term does not refer to the Members of the
which explains why the prohibition found in Article VII (Executive Supreme Court.
Department) was not written in Article VIII (Judicial Department);
and that the framers also incorporated in Article VIII ample Section 14, Section 15, and Section 16 are obviously of the same
restrictions or limitations on the President’s power to appoint character, in that they affect the power of the President to appoint.
members of the Supreme Court to ensure its independence from The fact that Section 14 and Section 16 refer only to appointments
“political vicissitudes” and its “insulation from political pressures,” within the Executive Department renders conclusive that Section
such as stringent qualifications for the positions, the establishment 15 also applies only to the Executive Department. This conclusion
of the JBC, the specified period within which the President shall is consistent with the rule that every part of the statute must be
appoint a Supreme Court Justice. interpreted with reference to the context, i.e. that every part must
be considered together with the other parts, and kept subservient
A part of the question to be reviewed by the Court is whether the to the general intent of the whole enactment. It is absurd to assume
JBC properly initiated the process, there being an insistence from that the framers deliberately situated Section 15 between Section
some of the oppositors-intervenors that the JBC could only do so 14 and Section 16, if they intended Section 15 to cover all kinds of
once the vacancy has occurred (that is, after May 17, 2010). presidential appointments. If that was their intention in respect of
Another part is, of course, whether the JBC may resume its process appointments to the Judiciary, the framers, if only to be clear, would
until the short list is prepared, in view of the provision of Section have easily and surely inserted a similar prohibition in Article VIII,
4(1), Article VIII, which unqualifiedly requires the President to most likely within Section 4 (1) thereof.
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:
Republic of the Philippines (SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA;
SUPREME COURT WALDEN F. BELLO and LORETTA ANN P. ROSALES;
Manila WOMEN TRIAL LAWYERS ORGANIZATION OF THE
PHILIPPINES, represented by YOLANDA QUISUMBING-
EN BANC JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA
GANDIONCO-OLEDAN; MA. VERENA KASILAG-
VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE
G.R. No. 191002 March 17, 2010 JESUS; and GUINEVERE DE LEON. Intervenors.
The announcement was published on January 20, 2010 in the G.R. No. 191002
Philippine Daily Inquirer and The Philippine Star. 17
a. Does the JBC have the power and authority to resolve
Conformably with its existing practice, the JBC "automatically the constitutional question of whether the incumbent
considered" for the position of Chief Justice the five most senior of President can appoint a Chief Justice during the election
the Associate Justices of the Court, namely: Associate Justice ban period?
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. b. Does the incumbent President have the power and
However, the last two declined their nomination through letters authority to appoint during the election ban the successor
dated January 18, 2010 and January 25, 2010, respectively. 18 of Chief Justice Puno when he vacates the position of
Chief Justice on his retirement on May 17, 2010?
Likewise, the JBC has yet to take a position on when to submit the The OSG posits that although Valenzuela involved the appointment
shortlist to the proper appointing authority, in light of Section 4 (1), of RTC Judges, the situation now refers to the appointment of the
Article VIII of the Constitution, which provides that vacancy in the next Chief Justice to which the prohibition does not apply; that, at
Supreme Court shall be filled within ninety (90) days from the any rate, Valenzuela even recognized that there might be "the
occurrence thereof, Section 15, Article VII of the Constitution imperative need for an appointment during the period of the ban,"
concerning the ban on Presidential appointments "two (2) months like when the membership of the Supreme Court should be "so
immediately before the next presidential elections and up to the reduced that it will have no quorum, or should the voting on a
end of his term" and Section 261 (g), Article XXII of the Omnibus particular important question requiring expeditious resolution be
Election Code of the Philippines. divided";34 and that Valenzuela also recognized that the filling of
vacancies in the Judiciary is undoubtedly in the public interest,
12. Since the Honorable Supreme Court is the final interpreter of most especially if there is any compelling reason to justify the
the Constitution, the JBC will be guided by its decision in these making of the appointments during the period of the prohibition. 35
consolidated Petitions and Administrative Matter.
Lastly, the OSG urges that there are now undeniably compelling
On February 26, 2010, the OSG also submitted its comment, reasons for the incumbent President to appoint the next Chief
essentially stating that the incumbent President can appoint the Justice, to wit: (a) a deluge of cases involving sensitive political
successor of Chief Justice Puno upon his retirement by May 17, issues is "quite expected";36 (b) the Court acts as the Presidential
2010. Electoral Tribunal (PET), which, sitting en banc, is the sole judge
of all contests relating to the election, returns, and qualifications of
the President and Vice President and, as such, has "the power to
The OSG insists that: (a) a writ of prohibition cannot issue to
correct manifest errors on the statement of votes (SOV) and
prevent the JBC from performing its principal function under the
certificates of canvass (COC)";37 (c) if history has shown that
Constitution to recommend appointees in the Judiciary; (b) the
during ordinary times the Chief Justice was appointed immediately
JBC's function to recommend is a "continuing process," which does
upon the occurrence of the vacancy, from the time of the effectivity
not begin with each vacancy or end with each nomination, because
of the Constitution, there is now even more reason to appoint the
the goal is "to submit the list of nominees to Malacañang on the
next Chief Justice immediately upon the retirement of Chief Justice
very day the vacancy arises";26 the JBC was thus acting within its
Puno;38 and (d) should the next Chief Justice come from among
jurisdiction when it commenced and set in motion the process of
the incumbent Associate Justices of the Supreme Court, thereby
selecting the nominees to be submitted to the President for the
causing a vacancy, it also becomes incumbent upon the JBC to
start the selection process for the filling up of the vacancy in is already in effect. Tan adds that the prohibition against midnight
accordance with the constitutional mandate.39 appointments was applied by the Court to the appointments to the
Judiciary made by then President Ramos, with the Court holding
On March 9, 2010, the Court admitted the following that the duty of the President to fill the vacancies within 90 days
comments/oppositions-in-intervention, to wit: from occurrence of the vacancies (for the Supreme Court) or from
the submission of the list (for all other courts) was not an excuse to
violate the constitutional prohibition.
(a) The opposition-in-intervention dated February 22,
2010 of Atty. Peter Irving Corvera (Corvera);40
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al.,
and Bello et al. oppose the insistence that Valenzuela recognizes
(b) The opposition-in-intervention dated February 22, the possibility that the President may appoint the next Chief Justice
2010 of Atty. Christian Robert S. Lim (Lim); if exigent circumstances warrant the appointment, because that
recognition is obiter dictum; and aver that the absence of a Chief
(c) The opposition-in-intervention dated February 23, Justice or even an Associate Justice does not cause epic damage
2010 of Atty. Alfonso V. Tan, Jr. (Tan); or absolute disruption or paralysis in the operations of the Judiciary.
They insist that even without the successor of Chief Justice Puno
being appointed by the incumbent President, the Court is allowed
(d) The comment/opposition-in-intervention dated March to sit and adjudge en banc or in divisions of three, five or seven
1, 2010 of the National Union of People's Lawyers
members at its discretion; that a full membership of the Court is not
(NUPL);
necessary; that petitioner De Castro's fears are unfounded and
baseless, being based on a mere possibility, the occurrence of
(e) The opposition-in-intervention dated February 25, which is entirely unsure; that it is not in the national interest to have
2010 of Atty. Marlou B. Ubano (Ubano); a Chief Justice whose appointment is unconstitutional and,
therefore, void; and that such a situation will create a crisis in the
(f) The opposition-in-intervention dated February 25, 2010 judicial system and will worsen an already vulnerable political
of Integrated Bar of the Philippines-Davao del Sur situation.
Chapter and its Immediate Past President, Atty. Israelito
P. Torreon (IBP- Davao del Sur); ice is imperative for the stability of the judicial system and the
political situation in the country when the election-related questions
(g) The opposition-in-intervention dated February 26, reach the Court as false, because there is an existing law on filling
2010 of Atty. Mitchell John L. Boiser (Boiser); the void brought about by a vacancy in the office of Chief Justice;
that the law is Section 12 of the Judiciary Act of 1948, which has
not been repealed by Batas Pambansa Blg. 129 or any other law;
(h)The consolidated comment/opposition-in-intervention that a temporary or an acting Chief Justice is not anathema to
dated February 26, 2010 of BAYAN Chairman Dr. judicial independence; that the designation of an acting Chief
Carolina P. Araullo; BAYAN Secretary General Renato M. Justice is not only provided for by law, but is also dictated by
Reyes, Jr.; Confederation for Unity, Recognition and practical necessity; that the practice was intended to be enshrined
Advancement of Government Employees (COURAGE) in the 1987 Constitution, but the Commissioners decided not to
Chairman Ferdinand Gaite; Kalipunan ng Damayang write it in the Constitution on account of the settled practice; that
Mahihirap (KADAMAY) Secretary General Gloria the practice was followed under the 1987 Constitution, when, in
Arellano; Alyansa ng Nagkakaisang Kabataan ng 1992, at the end of the term of Chief Justice Marcelo B. Fernan,
Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Associate Justice Andres Narvasa assumed the position as Acting
Ken Leonard Ramos; Tayo ang Pag-asa Convenor Alvin Chief Justice prior to his official appointment as Chief Justice; that
Peters; League of Filipino Students (LFS) Chairman said filling up of a vacancy in the office of the Chief Justice was
James Mark Terry Lacuanan Ridon; National Union of acknowledged and even used by analogy in the case of the
Students of the Philippines (NUSP) Chairman Einstein vacancy of the Chairman of the Commission on Elections,
Recedes, College Editors Guild of the Philippines (CEGP) per Brillantes v. Yorac, 192 SCRA 358; and that the history of the
Chairman Vijae Alquisola; and Student Christian Supreme Court has shown that this rule of succession has been
Movement of the Philippines (SCMP) Chairman Ma. repeatedly observed and has become a part of its tradition.
Cristina Angela Guevarra (BAYAN et al.);
Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that
(i) The opposition-in-intervention dated March 3, 2010 of the Omnibus Election Code penalizes as an election offense the
Walden F. Bello and Loretta Ann P. Rosales (Bello et al.); act of any government official who appoints, promotes, or gives any
and increase in salary or remuneration or privilege to any government
official or employee during the period of 45 days before a regular
(j) The consolidated comment/opposition-in-intervention election; that the provision covers all appointing heads, officials,
dated March 4, 2010 of the Women Trial Lawyers and officers of a government office, agency or instrumentality,
Organization of the Philippines (WTLOP), represented by including the President; that for the incumbent President to appoint
Atty. Yolanda Quisumbing-Javellana; Atty. Belleza the next Chief Justice upon the retirement of Chief Justice Puno,
Alojado Demaisip; Atty. Teresita Gandionco-Oledan; Atty. or during the period of the ban under the Omnibus Election Code,
Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta. constitutes an election offense; that even an appointment of the
Romana; Atty. Leonila de Jesus; and Atty. Guinevere de next Chief Justice prior to the election ban is fundamentally invalid
Leon (WTLOP). and without effect because there can be no appointment until a
vacancy occurs; and that the vacancy for the position can occur
only by May 17, 2010.
Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao
del Sur, and NUPL take the position that De Castro's petition was
bereft of any basis, because under Section 15, Article VII, the Intervenor Boiser adds that De Castro's prayer to compel the
outgoing President is constitutionally banned from making any submission of nominees by the JBC to the incumbent President is
appointments from March 10, 2010 until June 30, 2010, including off-tangent because the position of Chief Justice is still not vacant;
the appointment of the successor of Chief Justice Puno. Hence, that to speak of a list, much more a submission of such list, before
mandamus does not lie to compel the JBC to submit the list of a vacancy occurs is glaringly premature; that the proposed
nominees to the outgoing President if the constitutional prohibition advance appointment by the incumbent President of the next Chief
Justice will be unconstitutional; and that no list of nominees can be long period starting two months before the presidential elections
submitted by the JBC if there is no vacancy. until the end of the presidential term; and third, to set a definite
guideline for the JBC to follow in the discharge of its primary office
All the intervenors-oppositors submit that Section 15, Article VII of screening and nominating qualified persons for appointment to
makes no distinction between the kinds of appointments made by the Judiciary.
the President; and that the Court, in Valenzuela, ruled that the
appointments by the President of the two judges during the Thus, we resolve.
prohibition period were void.
Ruling of the Court
Intervenor WTLOP posits that Section 15, Article VII of the 1987
Constitution does not apply only to the appointments in the Locus Standi of Petitioners
Executive Department, but also to judicial appointments, contrary
to the submission of PHILCONSA; that Section 15 does not
distinguish; and that Valenzuela already interpreted the prohibition The preliminary issue to be settled is whether or not the
as applicable to judicial appointments. petitioners have locus standi.
Intervenor WTLOP further posits that petitioner Soriano's Black defines locus standi as "a right of appearance in a court of
contention that the power to appoint the Chief Justice is vested, not justice on a given question."41 In public or constitutional litigations,
in the President, but in the Supreme Court, is utterly baseless, the Court is often burdened with the determination of the locus
because the Chief Justice is also a Member of the Supreme Court standi of the petitioners due to the ever-present need to regulate
as contemplated under Section 9, Article VIII; and that, at any rate, the invocation of the intervention of the Court to correct any official
the term "members" was interpreted in Vargas v. Rillaroza (G.R. action or policy in order to avoid obstructing the efficient functioning
No. L-1612, February 26, 1948) to refer to the Chief Justice and of public officials and offices involved in public service. It is
the Associate Justices of the Supreme Court; that PHILCONSA's required, therefore, that the petitioner must have a personal stake
prayer that the Court pass a resolution declaring that persons who in the outcome of the controversy, for, as indicated in Agan, Jr. v.
manifest their interest as nominees, but with conditions, shall not Philippine International Air Terminals Co., Inc.:42
be considered nominees by the JBC is diametrically opposed to the
arguments in the body of its petition; that such glaring The question on legal standing is whether such parties have
inconsistency between the allegations in the body and the relief "alleged such a personal stake in the outcome of the controversy
prayed for highlights the lack of merit of PHILCONSA's petition; that as to assure that concrete adverseness which sharpens the
the role of the JBC cannot be separated from the constitutional presentation of issues upon which the court so largely depends for
prohibition on the President; and that the Court must direct the JBC illumination of difficult constitutional questions." 43 Accordingly, it
to follow the rule of law, that is, to submit the list of nominees only has been held that the interest of a person assailing the
to the next duly elected President after the period of the constitutionality of a statute must be direct and personal. He must
constitutional ban against midnight appointments has expired. be able to show, not only that the law or any government act is
invalid, but also that he sustained or is in imminent danger of
Oppositor IBP Davao del Sur opines that the JBC - because it is sustaining some direct injury as a result of its enforcement, and not
neither a judicial nor a quasi-judicial body - has no duty under the merely that he suffers thereby in some indefinite way. It must
Constitution to resolve the question of whether the incumbent appear that the person complaining has been or is about to be
President can appoint a Chief Justice during the period of denied some right or privilege to which he is lawfully entitled or that
prohibition; that even if the JBC has already come up with a short he is about to be subjected to some burdens or penalties by reason
list, it still has to bow to the strict limitations under Section 15, of the statute or act complained of.44
Article VII; that should the JBC defer submission of the list, it is not
arrogating unto itself a judicial function, but simply respecting the It is true that as early as in 1937, in People v. Vera,45 the Court
clear mandate of the Constitution; and that the application of the adopted the direct injury test for determining whether a petitioner
general rule in Section 15, Article VII to the Judiciary does not in a public action had locus standi. There, the Court held that the
violate the principle of separation of powers, because said person who would assail the validity of a statute must have "a
provision is an exception. personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result." Vera was
Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the followed in Custodio v. President of the Senate,46 Manila Race
JBC's act of nominating appointees to the Supreme Court is purely Horse Trainers' Association v. De la Fuente,47 Anti-Chinese
ministerial and does not involve the exercise of judgment; that there League of the Philippines v. Felix,48 and Pascual v. Secretary of
can be no default on the part of the JBC in submitting the list of Public Works.49
nominees to the President, considering that the call for applications
only begins from the occurrence of the vacancy in the Supreme Yet, the Court has also held that the requirement of locus standi,
Court; and that the commencement of the process of screening of being a mere procedural technicality, can be waived by the Court
applicants to fill the vacancy in the office of the Chief Justice only in the exercise of its discretion. For instance, in 1949, in Araneta v.
begins from the retirement on May 17, 2010, for, prior to this date, Dinglasan,50 the Court liberalized the approach when the cases
there is no definite legal basis for any party to claim that the had "transcendental importance." Some notable controversies
submission or non-submission of the list of nominees to the whose petitioners did not pass the direct injury test were allowed to
President by the JBC is a matter of right under law. be treated in the same way as in Araneta v. Dinglasan.51
The main question presented in all the filings herein - because it In the 1975 decision in Aquino v. Commission on Elections,52 this
involves two seemingly conflicting provisions of the Constitution - Court decided to resolve the issues raised by the petition due to
imperatively demands the attention and resolution of this Court, the their "far-reaching implications," even if the petitioner had no
only authority that can resolve the question definitively and finally. personality to file the suit. The liberal approach of Aquino v.
The imperative demand rests on the ever-present need, first, to Commission on Elections has been adopted in several notable
safeguard the independence, reputation, and integrity of the entire cases, permitting ordinary citizens, legislators, and civic
Judiciary, particularly this Court, an institution that has been
unnecessarily dragged into the harsh polemics brought on by the
controversy; second, to settle once and for all the doubt about an organizations to bring their suits involving the constitutionality or
outgoing President's power to appoint to the Judiciary within the validity of laws, regulations, and rulings.53
However, the assertion of a public right as a predicate for constitutional supervision and authority over them and other
challenging a supposedly illegal or unconstitutional executive or members of the legal profession.61
legislative action rests on the theory that the petitioner represents
the public in general. Although such petitioner may not be as The Court rules that the petitioners have each demonstrated
adversely affected by the action complained against as are others, adequate interest in the outcome of the controversy as to vest them
it is enough that he sufficiently demonstrates in his petition that he with the requisite locus standi. The issues before us are of
is entitled to protection or relief from the Court in the vindication of transcendental importance to the people as a whole, and to the
a public right. petitioners in particular. Indeed, the issues affect everyone
(including the petitioners), regardless of one's personal interest in
Quite often, as here, the petitioner in a public action sues as a life, because they concern that great doubt about the authority of
citizen or taxpayer to gain locus standi. That is not surprising, for the incumbent President to appoint not only the successor of the
even if the issue may appear to concern only the public in general, retiring incumbent Chief Justice, but also others who may serve in
such capacities nonetheless equip the petitioner with adequate the Judiciary, which already suffers from a far too great number of
interest to sue. In David v. Macapagal-Arroyo,54 the Court aptly vacancies in the ranks of trial judges throughout the country.
explains why:
In any event, the Court retains the broad discretion to waive the
Case law in most jurisdictions now allows both "citizen" and requirement of legal standing in favor of any petitioner when the
"taxpayer" standing in public actions. The distinction was first laid matter involved has transcendental importance, or otherwise
down in Beauchamp v. Silk,55 where it was held that the plaintiff in requires a liberalization of the requirement.62
a taxpayer's suit is in a different category from the plaintiff in a
citizen's suit. In the former, the plaintiff is affected by the Yet, if any doubt still lingers about the locus standi of any petitioner,
expenditure of public funds, while in the latter, he is but the we dispel the doubt now in order to remove any obstacle or
mere instrument of the public concern. As held by the New York obstruction to the resolution of the essential issue squarely
Supreme Court in People ex rel Case v. Collins:56 "In matter of presented herein. We are not to shirk from discharging our solemn
mere public right, however…the people are the real parties…It duty by reason alone of an obstacle more technical than otherwise.
is at least the right, if not the duty, of every citizen to interfere In Agan, Jr. v. Philippine International Air Terminals Co., Inc.,63 we
and see that a public offence be properly pursued and pointed out: "Standing is a peculiar concept in constitutional law
punished, and that a public grievance be remedied." With because in some cases, suits are not brought by parties who have
respect to taxpayer's suits, Terr v. Jordan57 held that "the right of been personally injured by the operation of a law or any other
a citizen and a taxpayer to maintain an action in courts to government act but by concerned citizens, taxpayers or voters who
restrain the unlawful use of public funds to his injury cannot actually sue in the public interest." But even if, strictly speaking, the
be denied."58 petitioners "are not covered by the definition, it is still within the
wide discretion of the Court to waive the requirement and so
Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. remove the impediment to its addressing and resolving the serious
191032) and Peralta (G.R. No. 191149) all assert their right as constitutional questions raised."64
citizens filing their petitions on behalf of the public who are directly
affected by the issue of the appointment of the next Chief Justice. Justiciability
De Castro and Soriano further claim standing as taxpayers, with
Soriano averring that he is affected by the continuing proceedings
in the JBC, which involve "unnecessary, if not, illegal disbursement Intervenor NUPL maintains that there is no actual case or
of public funds."59 controversy that is appropriate or ripe for adjudication, considering
that although the selection process commenced by the JBC is
going on, there is yet no final list of nominees; hence, there is no
PHILCONSA alleges itself to be a non-stock, non-profit imminent controversy as to whether such list must be submitted to
organization existing under the law for the purpose of defending, the incumbent President, or reserved for submission to the
protecting, and preserving the Constitution and promoting its incoming President.
growth and flowering. It also alleges that the Court has recognized
its legal standing to file cases on constitutional issues in several
cases.60 Intervenor Tan raises the lack of any actual justiciable controversy
that is ripe for judicial determination, pointing out that petitioner De
Castro has not even shown that the JBC has already completed its
In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the selection process and is now ready to submit the list to the
Philippines, a member of the Philippine Bar engaged in the active incumbent President; and that petitioner De Castro is merely
practice of law, and a former Solicitor General, former Minister of presenting a hypothetical scenario that is clearly not sufficient for
Justice, former Member of the Interim Batasang Pambansa and the the Court to exercise its power of judicial review.
Regular Batasang Pambansa, and former member of the Faculty
of the College of Law of the University of the Philippines.
Intervenors Corvera and Lim separately opine that De Castro's
petition rests on an overbroad and vague allegation of political
The petitioners in G.R. No. 191342 are the Governors of the tension, which is insufficient basis for the Court to exercise its
Integrated Bar of the Philippines (IBP) for Southern Luzon and power of judicial review.
Eastern Visayas. They allege that they have the legal standing to
enjoin the submission of the list of nominees by the JBC to the
President, for "[a]n adjudication of the proper interpretation and Intervenor BAYAN et al. contend that the petitioners are seeking a
application of the constitutional ban on midnight appointments with mere advisory opinion on what the JBC and the President should
regard to respondent JBC's function in submitting the list of do, and are not invoking any issues that are justiciable in nature.
nominees is well within the concern of petitioners, who are duty
bound to ensure that obedience and respect for the Constitution is Intervenors Bello et al. submit that there exist no conflict of legal
upheld, most especially by government offices, such as respondent rights and no assertion of opposite legal claims in any of the
JBC, who are specifically tasked to perform crucial functions in the petitions; that PHILCONSA does not allege any action taken by the
whole scheme of our democratic institution." They further allege JBC, but simply avers that the conditional manifestations of two
that, reposed in them as members of the Bar, is a clear legal Members of the Court, accented by the divided opinions and
interest in the process of selecting the members of the Supreme interpretations of legal experts, or associations of lawyers and law
Court, and in the selection of the Chief Justice, considering that the students on the issues published in the daily newspapers are
person appointed becomes a member of the body that has
"matters of paramount and transcendental importance to the with a constitutional interest, but seemingly proscribed by the
bench, bar and general public"; that PHILCONSA fails not only to Constitution. A reasonable certainty of the occurrence of the
cite any legal duty or allege any failure to perform the duty, but also perceived threat to a constitutional interest is sufficient to afford a
to indicate what specific action should be done by the JBC; that basis for bringing a challenge, provided the Court has sufficient
Mendoza does not even attempt to portray the matter as a facts before it to enable it to intelligently adjudicate the
controversy or conflict of rights, but, instead, prays that the Court issues.65 Herein, the facts are not in doubt, for only legal issues
should "rule for the guidance of" the JBC; that the fact that the Court remain.
supervises the JBC does not automatically imply that the Court can
rule on the issues presented in the Mendoza petition, because Substantive Merits
supervision involves oversight, which means that the subordinate
officer or body must first act, and if such action is not in accordance
with prescribed rules, then, and only then, may the person I
exercising oversight order the action to be redone to conform to the
prescribed rules; that the Mendoza petition does not allege that the Prohibition under Section 15, Article VII does not apply to
JBC has performed a specific act susceptible to correction for being appointments to fill a vacancy in the Supreme Court or to other
illegal or unconstitutional; and that the Mendoza petition asks the appointments to the Judiciary
Court to issue an advisory ruling, not to exercise its power of
supervision to correct a wrong act by the JBC, but to declare the
Two constitutional provisions are seemingly in conflict.
state of the law in the absence of an actual case or controversy.
We hold that the petitions set forth an actual case or controversy The first, Section 15, Article VII (Executive Department), provides:
that is ripe for judicial determination. The reality is that the JBC
already commenced the proceedings for the selection of the Section 15. Two months immediately before the next presidential
nominees to be included in a short list to be submitted to the elections and up to the end of his term, a President or Acting
President for consideration of which of them will succeed Chief President shall not make appointments, except temporary
Justice Puno as the next Chief Justice. Although the position is not appointments to executive positions when continued vacancies
yet vacant, the fact that the JBC began the process of nomination therein will prejudice public service or endanger public safety.
pursuant to its rules and practices, although it has yet to decide
whether to submit the list of nominees to the incumbent outgoing The other, Section 4 (1), Article VIII (Judicial Department), states:
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 Section 4. (1). The Supreme Court shall be composed of a Chief
candidates, and the "interview of constitutional experts, as may be Justice and fourteen Associate Justices. It may sit en banc or in its
needed." discretion, in division of three, five, or seven Members. Any
vacancy shall be filled within ninety days from the occurrence
thereof.
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 In the consolidated petitions, the petitioners, with the exception of
once the vacancy has occurred (that is, after May 17, 2010). Soriano, Tolentino and Inting, submit that the incumbent President
Another part is, of course, whether the JBC may resume its process can appoint the successor of Chief Justice Puno upon his
until the short list is prepared, in view of the provision of Section retirement on May 17, 2010, on the ground that the prohibition
4(1), Article VIII, which unqualifiedly requires the President to against presidential appointments under Section 15, Article VII
appoint one from the short list to fill the vacancy in the Supreme does not extend to appointments in the Judiciary.
Court (be it the Chief Justice or an Associate Justice) within 90
days from the occurrence of the vacancy. The Court agrees with the submission.
The ripeness of the controversy for judicial determination may not First. The records of the deliberations of the Constitutional
be doubted. The challenges to the authority of the JBC to open the Commission reveal that the framers devoted time to meticulously
process of nomination and to continue the process until the drafting, styling, and arranging the Constitution. Such
submission of the list of nominees; the insistence of some of the meticulousness indicates that the organization and arrangement of
petitioners to compel the JBC through mandamus to submit the the provisions of the Constitution were not arbitrarily or whimsically
short list to the incumbent President; the counter-insistence of the done by the framers, but purposely made to reflect their intention
intervenors to prohibit the JBC from submitting the short list to the and manifest their vision of what the Constitution should contain.
incumbent President on the ground that said list should be
submitted instead to the next President; the strong position that the
The Constitution consists of 18 Articles, three of which embody the
incumbent President is already prohibited under Section 15, Article
allocation of the awesome powers of government among the three
VII from making any appointments, including those to the Judiciary,
great departments, the Legislative (Article VI), the Executive
starting on May 10, 2010 until June 30, 2010; and the contrary
(Article VII), and the Judicial Departments (Article VIII). The
position that the incumbent President is not so prohibited are only
arrangement was a true recognition of the principle of separation
some of the real issues for determination. All such issues establish
of powers that underlies the political structure, as Constitutional
the ripeness of the controversy, considering that for some the short
Commissioner Adolfo S. Azcuna (later a worthy member of the
list must be submitted before the vacancy actually occurs by May
Court) explained in his sponsorship speech:
17, 2010. 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 We have in the political part of this Constitution opted for the
JBC from moving on with the process that it already began, or that separation of powers in government because we believe that the
are reasons persuading the JBC to desist from the rest of the only way to protect freedom and liberty is to separate and divide
process. the awesome powers of government. Hence, we return to the
separation of powers doctrine and the legislative, executive and
judicial departments.66
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
As can be seen, Article VII is devoted to the Executive Department, language - that "a President or Acting President shall not make
and, among others, it lists the powers vested by the Constitution in appointments…"
the President. The presidential power of appointment is dealt with
in Sections 14, 15 and 16 of the Article. The commission later approved a proposal of Commissioner Hilario
G. Davide, Jr. (now a Member of this Court) to add to what is now
Article VIII is dedicated to the Judicial Department and defines the Section 9 of Article VIII, the following paragraph: "WITH RESPECT
duties and qualifications of Members of the Supreme Court, among TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE
others. Section 4(1) and Section 9 of this Article are the provisions APPOINTMENT WITHIN NINETY DAYS FROM THE
specifically providing for the appointment of Supreme Court SUBMISSION OF THE LIST" (of nominees by the Judicial and Bar
Justices. In particular, Section 9 states that the appointment of Council to the President). Davide stated that his purpose was to
Supreme Court Justices can only be made by the President upon provide a "uniform rule" for lower courts. According to him, the 90-
the submission of a list of at least three nominees by the JBC; day period should be counted from submission of the list of
Section 4(1) of the Article mandates the President to fill the nominees to the President in view of the possibility that the
vacancy within 90 days from the occurrence of the vacancy. President might reject the list submitted to him and the JBC thus
need more time to submit a new one.
Had the framers intended to extend the prohibition contained in
Section 15, Article VII to the appointment of Members of the On the other hand, Section 15, Article VII - which in effect deprives
Supreme Court, they could have explicitly done so. They could not the President of his appointing power "two months immediately
have ignored the meticulous ordering of the provisions. They would before the next presidential elections up to the end of his term" -
have easily and surely written the prohibition made explicit in was approved without discussion.68
Section 15, Article VII as being equally applicable to the
appointment of Members of the Supreme Court in Article VIII itself, However, the reference to the records of the Constitutional
most likely in Section 4 (1), Article VIII. That such specification was Commission did not advance or support the result in Valenzuela.
not done only reveals that the prohibition against the President or Far to the contrary, the records disclosed the express intent of the
Acting President making appointments within two months before framers to enshrine in the Constitution, upon the initiative of
the next presidential elections and up to the end of the President's Commissioner Eulogio Lerum, "a command [to the President] to fill
or Acting President's term does not refer to the Members of the up any vacancy therein within 90 days from its occurrence," which
Supreme Court. even Valenzuela conceded.69 The exchanges during deliberations
of the Constitutional Commission on October 8, 1986 further show
Although Valenzuela67 came to hold that the prohibition covered that the filling of a vacancy in the Supreme Court within the 90-day
even judicial appointments, it cannot be disputed that the period was a true mandate for the President, viz:
Valenzuela dictum did not firmly rest on the deliberations of the
Constitutional Commission. Thereby, the confirmation made to the MR. DE CASTRO. I understand that our justices now in the
JBC by then Senior Associate Justice Florenz D. Regalado of this Supreme Court, together with the Chief Justice, are only 11.
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 MR. CONCEPCION. Yes.
mentioned, should prevail.
MR. DE CASTRO. And the second sentence of this subsection
Relevantly, Valenzuela adverted to the intent of the framers in the reads: "Any vacancy shall be filled within ninety days from the
genesis of Section 4 (1), Article VIII, viz: occurrence thereof."
The journal of the Commission which drew up the present MR. DE CASTRO. Is this now a mandate to the executive to fill
Constitution discloses that the original proposal was to have an the vacancy?
eleven-member Supreme Court. Commissioner Eulogio Lerum
wanted to increase the number of Justices to fifteen. He also MR. CONCEPCION. That is right. That is borne out of the fact
wished to ensure that that number would not be reduced for any that in the past 30 years, seldom has the Court had a complete
appreciable length of time (even only temporarily), and to this end complement.70
proposed that any vacancy "must be filled within two months from
the date that the vacancy occurs." His proposal to have a 15-
Moreover, the usage in Section 4(1), Article VIII of the word shall -
member Court was not initially adopted. Persisting however in his
an imperative, operating to impose a duty that may be enforced 71 -
desire to make certain that the size of the Court would not be
decreased for any substantial period as a result of vacancies, should not be disregarded. Thereby, Sections 4(1) imposes on the
Lerum proposed the insertion in the provision (anent the Court's President the imperative duty to make an appointment of a Member
of the Supreme Court within 90 days from the occurrence of the
membership) of the same mandate that "IN CASE OF ANY
vacancy. The failure by the President to do so will be a clear
VACANCY, THE SAME SHALL BE FILLED WITHIN TWO
MONTHS FROM OCCURRENCE THEREOF." He later agreed to disobedience to the Constitution.
suggestions to make the period three, instead of two, months. As
thus amended, the proposal was approved. As it turned out, The 90-day limitation fixed in Section 4(1), Article VIII for the
however, the Commission ultimately agreed on a fifteen-member President to fill the vacancy in the Supreme Court was undoubtedly
Court. Thus it was that the section fixing the composition of the a special provision to establish a definite mandate for the President
Supreme Court came to include a command to fill up any vacancy as the appointing power, and cannot be defeated by mere judicial
therein within 90 days from its occurrence. interpretation in Valenzuela to the effect that Section 15, Article VII
prevailed because it was "couched in stronger negative language."
Such interpretation even turned out to be conjectural, in light of the
In this connection, it may be pointed out that that instruction that
any "vacancy shall be filled within ninety days" (in the last sentence records of the Constitutional Commission's deliberations on
of Section 4 (1) of Article VIII) contrasts with the prohibition in Section 4 (1), Article VIII.
Section 15, Article VII, which is couched in stronger negative
How Valenzuela justified its pronouncement and result is hardly election and are similar to those which are declared election
warranted. According to an authority on statutory construction:72 offenses in the Omnibus Election Code, viz.:
xxx the court should seek to avoid any conflict in the provisions of xxx
the statute by endeavoring to harmonize and reconcile every part
so that each shall be effective. It is not easy to draft a statute, or The second type of appointments prohibited by Section 15, Article
any other writing for that matter, which may not in some manner VII consists of the so-called "midnight" appointments. In Aytona v.
contain conflicting provisions. But what appears to the reader to be Castillo, it was held that after the proclamation of Diosdado
a conflict may not have seemed so to the drafter. Undoubtedly, Macapagal as duly elected President, President Carlos P. Garcia,
each provision was inserted for a definite reason. Often by who was defeated in his bid for reelection, became no more than a
considering the enactment in its entirety, what appears to be on its "caretaker" administrator whose duty was to "prepare for the
face a conflict may be cleared up and the provisions reconciled. orderly transfer of authority to the incoming President." Said the
Court:
Consequently, that construction which will leave every word
operative will be favored over one which leaves some word or "The filling up of vacancies in important positions, if few, and so
provision meaningless because of inconsistency. But a word spaced as to afford some assurance of deliberate action and
should not be given effect, if to do so gives the statute a meaning careful consideration of the need for the appointment and
contrary to the intent of the legislature. On the other hand, if full appointee's qualifications may undoubtedly be permitted. But the
effect cannot be given to the words of a statute, they must be made issuance of 350 appointments in one night and the planned
effective as far as possible. Nor should the provisions of a statute induction of almost all of them in a few hours before the
which are inconsistent be harmonized at a sacrifice of the inauguration of the new President may, with some reason, be
legislative intention. It may be that two provisions are irreconcilable; regarded by the latter as an abuse of Presidential prerogatives, the
if so, the one which expresses the intent of the law-makers should steps taken being apparently a mere partisan effort to fill all vacant
control. And the arbitrary rule has been frequently announced that positions irrespective of fitness and other conditions, and thereby
where there is an irreconcilable conflict between the different to deprive the new administration of an opportunity to make the
provisions of a statute, the provision last in order of position will corresponding appointments."
prevail, since it is the latest expression of the legislative will.
Obviously, the rule is subject to deserved criticism. It is seldom
applied, and probably then only where an irreconcilable conflict As indicated, the Court recognized that there may well be
exists between different sections of the same act, and after all other appointments to important positions which have to be made even
means of ascertaining the meaning of the legislature have been after the proclamation of the new President. Such appointments,
exhausted. Where the conflict is between two statutes, more may so long as they are "few and so spaced as to afford some
be said in favor of the rule's application, largely because of the assurance of deliberate action and careful consideration of the
principle of implied repeal. need for the appointment and the appointee's qualifications," can
be made by the outgoing President. Accordingly, several
appointments made by President Garcia, which were shown to
In this connection, PHILCONSA's urging of a revisit and a review have been well considered, were upheld.
of Valenzuela is timely and appropriate. Valenzuela arbitrarily
ignored the express intent of the Constitutional Commission to
have Section 4 (1), Article VIII stand independently of any other Section 15, Article VII has a broader scope than the Aytona ruling.
provision, least of all one found in Article VII. It further ignored that It may not unreasonably be deemed to contemplate not only
the two provisions had no irreconcilable conflict, regardless of "midnight" appointments - those made obviously for partisan
Section 15, Article VII being couched in the negative. As judges, reasons as shown by their number and the time of their making -
we are not to unduly interpret, and should not accept an but also appointments presumed made for the purpose of
interpretation that defeats the intent of the framers. 73 influencing the outcome of the Presidential election.
Consequently, prohibiting the incumbent President from appointing On the other hand, the exception in the same Section 15 of Article
a Chief Justice on the premise that Section 15, Article VII extends VII - allowing appointments to be made during the period of the ban
to appointments in the Judiciary cannot be sustained. A therein provided - is much narrower than that recognized in Aytona.
misinterpretation like Valenzuela should not be allowed to last after The exception allows only the making of temporary appointments
its false premises have been exposed.74 It will not do to merely to executive positions when continued vacancies will prejudice
distinguish Valenzuela from these cases, for the result to be public service or endanger public safety. Obviously, the article
reached herein is entirely incompatible with what Valenzuela greatly restricts the appointing power of the President during the
decreed. Consequently, Valenzuela now deserves to be quickly period of the ban.
sent to the dustbin of the unworthy and forgettable.
Considering the respective reasons for the time frames for filling
We reverse Valenzuela. vacancies in the courts and the restriction on the President's power
of appointment, it is this Court's view that, as a general proposition,
in case of conflict, the former should yield to the latter. Surely, the
Second. Section 15, Article VII does not apply as well to all other prevention of vote-buying and similar evils outweighs the need for
appointments in the Judiciary. avoiding delays in filling up of court vacancies or the disposition of
some cases. Temporary vacancies can abide the period of the ban
There is no question that one of the reasons underlying the which, incidentally and as earlier pointed out, comes to exist only
adoption of Section 15 as part of Article VII was to eliminate once in every six years. Moreover, those occurring in the lower
midnight appointments from being made by an outgoing Chief courts can be filled temporarily by designation. But prohibited
Executive in the mold of the appointments dealt with in the leading appointments are long-lasting and permanent in their effects. They
case of Aytona v. Castillo.75 In fact, in Valenzuela, the Court so may, as earlier pointed out, in fact influence the results of elections
observed, stating that: and, for that reason, their making is considered an election
offense.76
xxx it appears that Section 15, Article VII is directed against two
types of appointments: (1) those made for buying votes and (2) Given the background and rationale for the prohibition in Section
those made for partisan considerations. The first refers to those 15, Article VII, we have no doubt that the Constitutional
appointments made within the two months preceding a Presidential Commission confined the prohibition to appointments made in the
Executive Department. The framers did not need to extend the third level courts may only be removed for cause, but the Members
prohibition to appointments in the Judiciary, because their of the Supreme Court may be removed only by impeachment.
establishment of the JBC and their subjecting the nomination and
screening of candidates for judicial positions to the unhurried and Section 16 covers only the presidential appointments that require
deliberate prior process of the JBC ensured that there would no confirmation by the Commission on Appointments. Thereby, the
longer be midnight appointments to the Judiciary. If midnight Constitutional Commission restored the requirement of
appointments in the mold of Aytona were made in haste and with confirmation by the Commission on Appointments after the
irregularities, or made by an outgoing Chief Executive in the last requirement was removed from the 1973 Constitution. Yet,
days of his administration out of a desire to subvert the policies of because of Section 9 of Article VIII, the restored requirement did
the incoming President or for partisanship, 77 the appointments to not include appointments to the Judiciary.83
the Judiciary made after the establishment of the JBC would not be
suffering from such defects because of the JBC's prior processing
of candidates. Indeed, it is axiomatic in statutory construction that Section 14, Section 15, and Section 16 are obviously of the same
the ascertainment of the purpose of the enactment is a step in the character, in that they affect the power of the President to appoint.
process of ascertaining the intent or meaning of the enactment, The fact that Section 14 and Section 16 refer only to appointments
because the reason for the enactment must necessarily shed within the Executive Department renders conclusive that Section
considerable light on "the law of the statute," i.e., the intent; hence, 15 also applies only to the Executive Department. This conclusion
the enactment should be construed with reference to its intended is consistent with the rule that every part of the statute must be
scope and purpose, and the court should seek to carry out this interpreted with reference to the context, i.e. that every part must
purpose rather than to defeat it.78 be considered together with the other parts, and kept subservient
to the general intent of the whole enactment.84 It is absurd to
assume that the framers deliberately situated Section 15 between
Also, the intervention of the JBC eliminates the danger that Section 14 and Section 16, if they intended Section 15 to cover all
appointments to the Judiciary can be made for the purpose of kinds of presidential appointments. If that was their intention in
buying votes in a coming presidential election, or of satisfying respect of appointments to the Judiciary, the framers, if only to be
partisan considerations. The experience from the time of the clear, would have easily and surely inserted a similar prohibition in
establishment of the JBC shows that even candidates for judicial Article VIII, most likely within Section 4 (1) thereof.
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 Fifth. To hold like the Court did in Valenzuela that Section 15
undergo the vetting of the JBC and pass muster there. Indeed, the extends to appointments to the Judiciary further undermines the
creation of the JBC was precisely intended to de-politicize the intent of the Constitution of ensuring the independence of the
Judiciary by doing away with the intervention of the Commission on Judicial Department from the Executive and Legislative
Appointments. This insulating process was absent from the Aytona Departments. Such a holding will tie the Judiciary and the Supreme
midnight appointment. Court to the fortunes or misfortunes of political leaders vying for the
Presidency in a presidential election. Consequently, the wisdom of
having the new President, instead of the current incumbent
Third. As earlier stated, the non-applicability of Section 15, Article President, appoint the next Chief Justice is itself suspect, and
VII to appointments in the Judiciary was confirmed by then Senior cannot ensure judicial independence, because the appointee can
Associate Justice Regalado to the JBC itself when it met on March also become beholden to the appointing authority. In contrast, the
9, 1998 to discuss the question raised by some sectors about the appointment by the incumbent President does not run the same
"constitutionality of xxx appointments" to the Court of Appeals in risk of compromising judicial independence, precisely because her
light of the forthcoming presidential elections. He assured that "on term will end by June 30, 2010.
the basis of the (Constitutional) Commission's records, the election
ban had no application to appointments to the Court of
Appeals."79 This confirmation was accepted by the JBC, which then Sixth. The argument has been raised to the effect that there will be
submitted to the President for consideration the nominations for the no need for the incumbent President to appoint during the
eight vacancies in the Court of Appeals.80 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
The fault of Valenzuela was that it accorded no weight and due VIII remaining.
consideration to the confirmation of Justice Regalado. Valenzuela
was weak, because it relied on interpretation to determine the
intent of the framers rather than on the deliberations of the The argument is flawed, because it is focused only on the coming
Constitutional Commission. Much of the unfounded doubt about vacancy occurring from Chief Justice Puno's retirement by May 17,
the President's power to appoint during the period of prohibition in 2010. It ignores the need to apply Section 4(1) to every situation of
Section 15, Article VII could have been dispelled since its a vacancy in the Supreme Court.
promulgation on November 9, 1998, had Valenzuela properly
acknowledged and relied on the confirmation of a distinguished The argument also rests on the fallacious assumption that there
member of the Constitutional Commission like Justice Regalado. will still be time remaining in the 90-day period under Section 4(1),
Article VIII. The fallacy is easily demonstrable, as the OSG has
Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, shown in its comment.
Section15, and Section 16) concern the appointing powers of the
President. Section 4 (3), Article VII requires the regular elections to be held on
the second Monday of May, letting the elections fall on May 8, at
Section 14 speaks of the power of the succeeding President to the earliest, or May 14, at the latest. If the regular presidential
revoke appointments made by an Acting President, 81 and evidently elections are held on May 8, the period of the prohibition is 115
refers only to appointments in the Executive Department. It has no days. If such elections are held on May 14, the period of the
application to appointments in the Judiciary, because temporary or prohibition is 109 days. Either period of the prohibition is longer
acting appointments can only undermine the independence of the than the full mandatory 90-day period to fill the vacancy in the
Judiciary due to their being revocable at will.82 The letter and spirit Supreme Court. The result is that there are at least 19 occasions
of the Constitution safeguard that independence. Also, there is no (i.e., the difference between the shortest possible period of the ban
law in the books that authorizes the revocation of appointments in of 109 days and the 90-day mandatory period for appointments) in
the Judiciary. Prior to their mandatory retirement or resignation, which the outgoing President would be in no position to comply with
judges of the first and second level courts and the Justices of the the constitutional duty to fill up a vacancy in the Supreme Court. It
is safe to assume that the framers of the Constitution could not Notwithstanding that there is no pressing need to dwell on this
have intended such an absurdity. In fact, in their deliberations on peripheral matter after the Court has hereby resolved the question
the mandatory period for the appointment of Supreme Court of consequence, we do not find it amiss to confront the matter now.
Justices under Section 4 (1), Article VIII, the framers neither
discussed, nor mentioned, nor referred to the ban against midnight We cannot agree with the posture.
appointments under Section 15, Article VII, or its effects on the 90-
day period, or vice versa. They did not need to, because they never
intended Section 15, Article VII to apply to a vacancy in the A review of Sections 4(1) and 9 of Article VIII shows that the
Supreme Court, or in any of the lower courts. Supreme Court is composed of a Chief Justice and 14 Associate
Justices, who all shall be appointed by the President from a list of
at least three nominees prepared by the JBC for every vacancy,
Seventh. As a matter of fact, in an extreme case, we can even raise which appointments require no confirmation by the Commission on
a doubt on whether a JBC list is necessary at all for the President Appointments. With reference to the Chief Justice, he or she is
- any President - to appoint a Chief Justice if the appointee is to appointed by the President as Chief Justice, and the appointment
come from the ranks of the sitting justices of the Supreme Court. is never in an acting capacity. The express reference to a Chief
Justice abhors the idea that the framers contemplated an Acting
Sec. 9, Article VIII says: Chief Justice to head the membership of the Supreme Court.
Otherwise, they would have simply written so in the Constitution.
xxx. The Members of the Supreme Court xxx shall be appointed by Consequently, to rely on Section 12 of the Judiciary Act of 1948 in
the President from a list of at least three nominees prepared by the order to forestall the imperative need to appoint the next Chief
Judicial and Bar Council for any vacancy. Such appointments need Justice soonest is to defy the plain intent of the Constitution.
no confirmation.
For sure, the framers intended the position of Chief Justice to be
xxx 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
The provision clearly refers to an appointee coming into the to a rare situation in which the new Chief Justice is not yet
Supreme Court from the outside, that is, a non-member of the Court appointed, or in which the incumbent Chief Justice is unable to
aspiring to become one. It speaks of candidates for the Supreme perform the duties and powers of the office. It ought to be
Court, not of those who are already members or sitting justices of remembered, however, that it was enacted because the Chief
the Court, all of whom have previously been vetted by the JBC. Justice appointed under the 1935 Constitution was subject to the
confirmation of the Commission on Appointments, and the
Can the President, therefore, appoint any of the incumbent Justices confirmation process might take longer than expected.
of the Court as Chief Justice?
The appointment of the next Chief Justice by the incumbent
The question is not squarely before us at the moment, but it should President is preferable to having the Associate Justice who is first
lend itself to a deeper analysis if and when circumstances permit. in precedence take over. Under the Constitution, the heads of the
It should be a good issue for the proposed Constitutional Legislative and Executive Departments are popularly elected, and
Convention to consider in the light of Senate President Juan Ponce whoever are elected and proclaimed at once become the leaders
Enrile's statement that the President can appoint the Chief Justice of their respective Departments. However, the lack of any
from among the sitting justices of the Court even without a JBC list. appointed occupant of the office of Chief Justice harms the
independence of the Judiciary, because the Chief Justice is the
head of the entire Judiciary. The Chief Justice performs functions
II
absolutely significant to the life of the nation. With the entire
Supreme Court being the Presidential Electoral Tribunal, the Chief
The Judiciary Act of 1948 Justice is the Chairman of the Tribunal. There being no obstacle to
the appointment of the next Chief Justice, aside from its being
The posture has been taken that no urgency exists for the mandatory for the incumbent President to make within the 90-day
President to appoint the successor of Chief Justice Puno, period from May 17, 2010, there is no justification to insist that the
considering that the Judiciary Act of 1948 can still address the successor of Chief Justice Puno be appointed by the next
situation of having the next President appoint the successor. President.
Section 12 of the Judiciary Act of 1948 states: Historically, under the present Constitution, there has been no wide
gap between the retirement and the resignation of an incumbent
Chief Justice, on one hand, and the appointment to and
Section 12. Vacancy in Office of Chief Justice. - In case of a assumption of office of his successor, on the other hand. As
vacancy in the office of Chief Justice of the Supreme Court or of summarized in the comment of the OSG, the chronology of
his inability to perform the duties and powers of his office, they shall succession is as follows:
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 1. When Chief Justice Claudio Teehankee retired on April
Justice who succeeds to the office of Chief Justice. 18, 1988, Chief Justice Pedro Yap was appointed on the
same day;
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 2. When Chief Justice Yap retired on July 1, 1988, Chief
Chief Justice is unable to perform his duties and powers. In either Justice Marcelo Fernan was appointed on the same day;
of such circumstances, the duties and powers of the office of the
Chief Justice shall devolve upon the Associate Justice who is first 3. When Chief Justice Fernan resigned on December 7,
in precedence until a new Chief Justice is appointed or until the 1991, Chief Justice Andres Narvasa was appointed the
disability is removed. following day, December 8, 1991;
4. When Chief Justice Narvasa retired on November 29, Constitution for the President to make the appointment. For the
1998, Chief Justice Hilario Davide, Jr. was sworn into JBC to do so will be unconscionable on its part, considering that it
office the following early morning of November 30, 1998; will thereby effectively and illegally deprive the President of the
ample time granted under the Constitution to reflect on the
5. When Chief Justice Davide retired on December 19, qualifications of the nominees named in the list of the JBC before
2005, Chief Justice Artemio Panganiban was appointed making the appointment.
the next day, December 20, 2005; and
The duty of the JBC to submit a list of nominees before the start of
6. When Chief Justice Panganiban retired on December the President's mandatory 90-day period to appoint is ministerial,
6, 2006, Chief Justice Reynato S. Puno took his oath as but its selection of the candidates whose names will be in the list to
Chief Justice at midnight of December 6, 2006.85 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
III vacancy in the Judiciary, because in order to constitute unlawful
neglect of duty, there must be an unjustified delay in performing
Writ of mandamus does not lie against the JBC that duty.88 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
May the JBC be compelled to submit the list of nominees to the
President.
President?
Section 8. xxx IV
For the lower courts, the President shall issue the appointments
On the other hand, the petition for prohibition in G.R. No. 191342
within ninety days from the submission of the list.
is similarly devoid of merit. The challenge mounted against the
composition of the JBC based on the allegedly unconstitutional
However, Section 4(1) and Section 9, Article VIII, mandate the allocation of a vote each to the ex officio members from the Senate
President to fill the vacancy in the Supreme Court within 90 days and the House of Representatives, thereby prejudicing the chances
from the occurrence of the vacancy, and within 90 days from the of some candidates for nomination by raising the minimum number
submission of the list, in the case of the lower courts. The 90-day of votes required in accordance with the rules of the JBC, is not
period is directed at the President, not at the JBC. Thus, the JBC based on the petitioners' actual interest, because they have not
should start the process of selecting the candidates to fill the alleged in their petition that they were nominated to the JBC to fill
vacancy in the Supreme Court before the occurrence of the some vacancies in the Judiciary. Thus, the petitioners lack locus
vacancy. standi on that issue.
Under the Constitution, it is mandatory for the JBC to submit to the WHEREFORE, the Court:
President the list of nominees to fill a vacancy in the Supreme Court
in order to enable the President to appoint one of them within the 1. Dismisses the petitions for certiorari and mandamus in
90-day period from the occurrence of the vacancy. The JBC has no G.R. No. 191002 and G.R. No. 191149, and the petition
discretion to submit the list to the President after the vacancy
for mandamus in G.R. No. 191057 for being premature;
occurs, because that shortens the 90-day period allowed by the
2. Dismisses the petitions for prohibition in G.R. No. 2. Is the JBC’s practice of having members from the Senate and
191032 and G.R. No. 191342 for lack of merit; and the House of Representatives making 8 instead of 7 sitting
members unconstitutional?
3. Grants the petition in A.M. No. 10-2-5-SC and,
accordingly, directs the Judicial and Bar Council: 3. What is the effect of the Court's finding that the current
composition of the JBC is unconstitutional?
Central to the resolution of the foregoing petition is an Applying the foregoing principle to this case, it becomes apparent
understanding of the composition of the JBC as stated in the first that the word "Congress" used in Article VIII, Section 8(1) of the
paragraph of Section 8, Article VIII of the Constitution. It reads: Constitution is used in its generic sense. No particular allusion
whatsoever is made on whether the Senate or the House of Service…even ambassadors, generals of the Army will not come
Representatives is being referred to, but that, in either case, only a under this restriction. Why are we going to segregate the Judiciary
singular representative may be allowed to sit in the JBC. The from the rest of our government in the appointment of high-ranking
foregoing declaration is but sensible, since, as pointed out by an officials?
esteemed former member of the Court and consultant of the JBC
in his memorandum,40 "from the enumeration of the membership of Another reason is that this Council will be ineffective. It will just
the JBC, it is patent that each category of members pertained to a besmirch the honor of our President without being effective at all
single individual only."41 because this Council will be under the influence of the President.
Four out of seven are appointees of the President and they can be
Indeed, the spirit and reason of the statute may be passed upon reappointed when their term ends. Therefore, they would be
where a literal meaning would lead to absurdity, contradiction, kowtow the President. A fifth member is the Minister of Justice, an
injustice, or defeat the clear purpose of the lawmakers. 42 Not any alter ego of the President. Another member represents the
of these instances, however, is present in the case at Legislature. In all probability, the controlling part in the legislature
bench. Considering that the language of the subject constitutional belongs to the President and, therefore, this representative form
provision is plain and unambiguous, there is no need to resort the National Assembly is also under the influence of the President.
extrinsic aids such as records of the Constitutional Commission. And may I say, Mr. Presiding Officer, that event the Chief Justice
of the Supreme Court is an appointee of the President. So it is futile
Nevertheless, even if the Court should proceed to look into the he will be influence anyway by the President. 44 [Emphases
minds of the members of the Constitutional Commission, it is supplied]
undeniable from the records thereof that it was intended that the
JBC be composed of seven (7) members only. Thus: At this juncture, it is worthy to note that the seven-member
composition of the JBC serves a practical purpose, that is, to
MR. RODRIGO: Let me go to another point then. provide a solution should there be a stalemate in voting. This
underlying reason leads the Court to conclude that a single vote
may not be divided into half (1/2), between two representatives of
On page 2, Section 5, there is a novel provision about the Congress, or among any of the sitting members of the JBC for that
appointments of members of the Supreme Court and judges of the matter. This unsanctioned practice can possibly cause disorder
lower courts. At present it is the President who appoints them. If and eventually muddle the JBC’s voting process, especially in the
there is a Commission on Appointments, then it is the President event a tie is reached. The aforesaid purpose would then be
with the confirmation of the Commission on Appointment. In this rendered illusory, defeating the precise mechanism which the
proposal, we would like to establish a new office, a sort of a board Constitution itself created. While it would be unreasonable to
composed of seven members called the Judicial and Bar Council. expect that the Framers provide for every possible scenario, it is
And while the President will still appoint the member of the sensible to presume that they knew that an odd composition is the
judiciary, he will be limited to the recommendees of this Council. best means to break a voting deadlock.
xxx xxx xxx The respondents insist that owing to the bicameral nature of
Congress, the word "Congress" in Section 8(1), Article VIII of the
MR. RODRIGO. Of the seven members of the Judicial and Bar Constitution should be read as including both the Senate and the
Council, the President appoints four of them who are regular House of Representatives. They theorize that it was so worded
members. because at the time the said provision was being drafted, the
Framers initially intended a unicameral form of Congress.
xxx xxx xxx
Then, when the Constitutional Commission eventually adopted a
bicameral form of Congress, the Framers, through oversight, failed
MR. CONCEPCION. The only purpose of the Committee is to to amend Article VIII, Section 8 of the Constitution.45 On this score,
eliminate partisan politics.43 the Court cites the insightful analysis of another member of the
Court and JBC consultant, retired Justice Consuelo Ynares-
xxx xxx xxx Santiago.46 Thus:
MR. RODRIGO. If my amendment is approved, then the provision A perusal of the records of the Constitutional Commission reveals
will be exactly the same as the provision in the 1935 Constitution, that the composition of the JBC reflects the Commission’s desire
Article VIII, Section 5. "to have in the Council a representation for the major elements of
the community." xxx The ex-officio members of the Council consist
xxx xxx xxx of representatives from the three main branches of government
while the regular members are composed of various stakeholders
in the judiciary. The unmistakeable tenor of Article VIII, Section
If we do not remove the proposed amendment on the creation of 8(1) was to treat each ex-officio member as representing one
the Judicial and Bar Council, this will be a diminution of the co-equal branch of government. xxxThus, the JBC was designed
appointing power of the highest magistrate of the land, of the to have seven voting members with the three ex-officio members
having equal say in the choice of judicial nominees.
President of the Philippines elected by all the Filipino people. The
appointing power will be limited by a group of seven people who xxx xxx xxx
are not elected by the people but only appointed.
No parallelism can be drawn between the representative of
Mr. Presiding Officer, if this Council is created, there will be no Congress in the JBC and the exercise by Congress of its
uniformity in our constitutional provisions on appointments. The legislative powers under Article VI and constituent powers
members of the Judiciary will be segregated from the rest of the under Article XVII of the Constitution. Congress, in relation to
government. Even a municipal judge cannot be appointed by the the executive and judicial branches of government, is
President except upon recommendation or nomination of the three constitutionally treated as another co-equal branch of in the matter
names by this Committee of seven people, commissioners of the of its representative in the JBC. On the other hand, the exercise of
Commission on Elections, the COA and the Commission on Civil legislative and constituent powers requires the Senate and House
of Representatives to coordinate and act as distinct bodies in The present imbalance in voting power between the Legislative and
furtherance of Congress’ role under our constitutional the other sectors represented in the JBC must be corrected
scheme. While the latter justifies and, in fact, necessitates the especially when considered vis-à-vis the avowed purpose for its
separateness of the two houses of Congress as they relate creation, i.e., to insulate the appointments in the Judiciary against
inter se, no such dichotomy need be made when Congress political influence. By allowing both houses of Congress to have a
interacts with the other two co-equal branches of government. representative in the JBC and by giving each representative one
(1) vote in the Council, Congress, as compared to the other
It is more in keeping with the co-equal nature of the three members of the JBC, is accorded greater and unwarranted
governmental branches to assign the same weight to influence in the appointment of judges.54[Emphasis supplied]
considerations that any of its representatives may have
regarding aspiring nominees to the judiciary. The It is clear, therefore, that the Constitution mandates that the JBC
representatives of the Senate and the House of be composed of seven (7) members only. Thus, any inclusion of
Representatives act as such for one branch and should not another member, whether with one whole vote or half (1/2) of it,
have any more quantitative influence as the other branches in goes against that mandate. Section 8(1), Article VIII of the
the exercise of prerogatives evenly bestowed upon the Constitution, providing Congress with an equal voice with other
three. Sound reason and principle of equality among the three members of the JBC in recommending appointees to the Judiciary
branches support this conclusion. [Emphases and underscoring is explicit. Any circumvention of the constitutional mandate should
supplied] not be countenanced for the Constitution is the supreme law of the
land. The Constitution is the basic and paramount law to which all
More than the reasoning provided in the above discussed rules of other laws must conform and to which all persons, including the
constitutional construction, the Court finds the above thesis as the highest officials of the land, must defer. Constitutional doctrines
paramount justification of the Court’s conclusion that "Congress," must remain steadfast no matter what may be the tides of time. It
in the context of JBC representation, should be considered as one cannot be simply made to sway and accommodate the call of
body. It is evident that the definition of "Congress" as a bicameral situations and much more tailor itself to the whims and caprices of
body refers to its primary function in government - to legislate.47 In the government and the people who run it. 55 Hence, any act of the
the passage of laws, the Constitution is explicit in the distinction of government or of a public official or employee which is contrary to
the role of each house in the process. The same holds true in the Constitution is illegal, null and void.
Congress’ non-legislative powers such as, inter alia, the power of
appropriation,48 the declaration of an existence of a state of As to the effect of the Court’s finding that the current composition
war,49 canvassing of electoral returns for the President and Vice- of the JBC is unconstitutional, it bears mentioning that as a general
President,50 and impeachment.51 In the exercise of these powers, rule, an unconstitutional act is not a law; it confers no rights; it
the Constitution employs precise language in laying down the roles imposes no duties; it affords no protection; it creates no office; it is
which a particular house plays, regardless of whether the two inoperative as if it has not been passed at all.56 This rule, however,
houses consummate an official act by voting jointly or separately. is not absolute. In the interest of fair play under the doctrine of
An inter-play between the two houses is necessary in the operative facts, actions previous to the declaration of
realization of these powers causing a vivid dichotomy that the Court unconstitutionality are legally recognized. They are not nullified. In
cannot simply discount. Verily, each house is constitutionally Planters Products, Inc. v. Fertiphil Corporation,57the Court
granted with powers and functions peculiar to its nature and with explained:
keen consideration to 1) its relationship with the other chamber;
and 2) in consonance with the principle of checks and balances, to The doctrine of operative fact, as an exception to the general rule,
the other branches of government. only applies as a matter of equity and fair play.1âwphi1 It nullifies
the effects of an unconstitutional law by recognizing that the
This, however, cannot be said in the case of JBC representation existence of a statute prior to a determination of unconstitutionality
because no liaison between the two houses exists in the workings is an operative fact and may have consequences which cannot
of the JBC. No mechanism is required between the Senate and the always be ignored. The past cannot always be erased by a new
House of Representatives in the screening and nomination of judicial declaration.
judicial officers. Hence, the term "Congress" must be taken to
mean the entirelegislative department. A fortiori, a pretext of The doctrine is applicable when a declaration of unconstitutionality
oversight cannot prevail over the more pragmatic scheme which will impose an undue burden on those who have relied on the
the Constitution laid with firmness, that is, that the JBC has a seat invalid law. Thus, it was applied to a criminal case when a
for a single representative of Congress, as one of the co-equal declaration of unconstitutionality would put the accused in double
branches of government. jeopardy or would put in limbo the acts done by a municipality in
reliance upon a law creating it.
Doubtless, the Framers of our Constitution intended to create a
JBC as an innovative solution in response to the public clamor in Considering the circumstances, the Court finds the exception
favor of eliminating politics in the appointment of members of the applicable in this case and holds that notwithstanding its finding of
Judiciary.52 To ensure judicial independence, they adopted a unconstitutionality in the current composition of the JBC, all its prior
holistic approach and hoped that, in creating a JBC, the private official actions are nonetheless valid.
sector and the three branches of government would have an active
role and equal voice in the selection of the members of the
Judiciary. At this point, the Court takes the initiative to clarify that it is not in a
position to determine as to who should remain as the sole
representative of Congress in the JBC. This is a matter beyond the
Therefore, to allow the Legislature to have more quantitative province of the Court and is best left to the determination of
influence in the JBC by having more than one voice speak, whether Congress.
with one full vote or one-half (1/2) a vote each, would, as one
former congressman and member of the JBC put it, "negate the
principle of equality among the three branches of government Finally, while the Court finds wisdom in respondents' contention
which is enshrined in the Constitution."53 that both the Senate and the House of Representatives should be
equally represented in the JBC, the Court is not in a position to
stamp its imprimatur on such a construction at the risk of expanding
To quote one former Secretary of Justice: the meaning of the Constitution as currently worded. Needless to
state, the remedy lies in the amendment of this constitutional
provision. The courts merely give effect to the lawgiver's intent. The corpus; A. What are the parameters for review? B. Who has the
solemn power and duty of the Court to interpret and apply the law burden of proof? C. What is the threshold of evidence?
does not include the power to correct, by reading into the law what [5] Whether the exercise of the power of judicial review by this
is not written therein. Court involves the calibration of graduated powers granted the
President as Commander-in-Chief?
WHEREFORE, the petition is GRANTED. The current numerical [6] W/N Proclamation No. 216 of 23 May 2017 may be considered,
composition of the Judicial and Bar Council IS declared vague and thus null and void: a. with its inclusion of “other rebel
UNCONSTITUTIONAL. The Judicial and Bar Council is hereby groups;” or b. since it has no guidelines specifying its actual
enjoined to reconstitute itself so that only one ( 1) member of operational parameters within the entire Mindanao region;
Congress will sit as a representative in its proceedings, in [7] W/N the armed hostilities mentioned in Proclamation No. 216
accordance with Section 8( 1 ), Article and in the Report of the President to Congress are sufficient bases:
a. for the existence of actual rebellion; or b. for a declaration of
martial law or the suspension of the privilege of the writ of habeas
VIII of the 1987 Constitution. corpus in the entire Mindanao region;
[8] W/N terrorism or acts attributable to terrorism are equivalent to
This disposition is immediately executory. actual rebellion and the requirements of public safety sufficient to
declare martial law or suspend the privilege of the writ of habeas
corpus; and
SO ORDERED.
[9] W/N nullifying Proclamation No. 216 of23 May 2017 will: A. have
the effect of recalling Proclamation No. 55 s. 2016; or B. also nullify
the acts of the President in calling out the armed forces to quell
lawless violence in Marawi and other parts of the Mindanao region.
RULING:
1. The Court agrees that the jurisdiction of this Court under the third
FACTS: paragraph of Section 18, Article VII is sui generis. It is a special and
Effective May 23, 2017, and for a period not exceeding 60 days, specific jurisdiction of the Supreme Court different from those
President Rodrigo Roa Duterte issued Proclamation No. 216 enumerated in Sections 1 and 5 of Article VIII. The phrase “in an
declaring a state of martial law and suspending the privilege of the appropriate proceeding” appearing on the third paragraph of
writ of habeas corpus in the whole of Mindanao. Section 18, Article VII refers to any action initiated by a citizen for
In accordance with Section 18, Article VII of the Constitution, the the purpose of questioning the sufficiency of the factual basis of the
President, on May 25, 2017, submitted to Congress a written exercise of the Chief Executive’s emergency powers, as in these
Report on the factual basis of Proclamation No. 216. cases. It could be denominated as a complaint, a petition, or a
The Report pointed out that for decades, Mindanao has been matter to be resolved by the Court.
plagued with rebellion and lawless violence which only escalated 2. a.) In determining the sufficiency of the factual basis of the
and worsened with the passing of time. declaration and/or the suspension, the Court should look into the
On May 23, 2017, as the President stated in his Report, the Maute full complement or totality of the factual basis, and not piecemeal
terrorist group took over a hospital in Marawi City; established or individually. Neither should the Court expect absolute
several checkpoints within the city; burned down certain correctness of the facts stated in the proclamation and in the written
government and private facilities and inflicted casualties on the part Report as the President could not be expected to verify the
of Government forces; and started flying the flag of the Islamic accuracy and veracity of all facts reported to him due to the urgency
State of Iraq and Syria (ISIS) in several areas, thereby indicating a of the situation. To require him otherwise would impede the
removal of allegiance from the Philippine Government and their process of his decision-making.
capability to deprive the duly constituted authorities – the b.) The recommendation of the Defense Secretary is not a
President, foremost – of their powers and prerogatives. condition for the declaration of martial law or suspension of the
The Report also highlighted the strategic location of Marawi City; privilege of the writ of habeas corpus. A plain reading of Section
the role it plays in Mindanao, and the Philippines as a whole; and 18, Article VII of the Constitution shows that the President’s power
the possible tragic repercussions once it falls under the control of to declare martial law is not subject to any condition except for the
the lawless groups. requirements of actual invasion or rebellion and that public safety
After the submission of the Report and the briefings, the Senate requires it. Besides, it would be contrary to common sense if the
declared that it found “no compelling reason to revoke decision of the President is made dependent on the
Proclamation 216. recommendation of his mere alter ego. Only on the President can
The Lagman Group, the Cullamat Group and the Mohamad Group exercise of the powers of the Commander-in-Chief.
petitioned the Supreme Court, questioning the factual basis of c.) As Commander-in-Chief, the President has the sole discretion
President Duterte’s Proclamation of martial law. to declare martial law and/or to suspend the privilege of the writ of
ISSUES: habeas corpus, subject to the revocation of Congress and the
[1] W/N the petitions are the “appropriate proceeding” covered by review of this Court. Since the exercise of these powers is a
paragraph 3, Section 18, Article VII of the Constitution sufficient to judgment call of the President, the determination of this Court as to
invoke the mode of review required by the Court; whether there is sufficient factual basis for the exercise of such,
[2] A. Is the President required to be factually correct or only not must be based only on facts or information known by or available
arbitrary in his appreciation of facts? B. Is the President required to to the President at the time he made the declaration or suspension
obtain the favorable recommendation thereon bf the Secretary of which facts or information are found in the proclamation as well as
National Defense? C. Is the President is required to take into the written Report submitted by him to Congress. These may be
account only the situation at the time of the proclamation, even if based on the situation existing at the time the declaration was
subsequent events prove the situation to have not been accurately made or past events. As to how far the past events should be from
reported? the present depends on the President.
[3] Is the power of this Court to review the sufficiency of the factual 3. The power of the Court to review the sufficiency of the factual
basis of the proclamation of martial law or the suspension of the basis of the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus is independent of the actual privilege of the writ of habeas corpus under Section 18, Article VII
actions that have been taken by Congress jointly or separately; of the 1987 Constitution is independent of the actions taken by
[4] W/N there were sufficient factual [basis] for the proclamation of Congress.
martial law or the suspension of the privilege of the writ of habeas
The Court may strike down the presidential proclamation in an only against government forces or establishment but likewise
appropriate proceeding filed by any citizen on the ground of lack against civilians and their properties. There were bomb threats,
sufficient factual basis. On the other hand, Congress may revoke road blockades, burning of schools and churches, hostages and
the proclamation or suspension, which revocation shall not be set killings of civilians, forced entry of young male Muslims to the
aside by the President. The power to review by the Court and the group, there were hampering of medical services and delivery of
power to revoke by Congress are not only totally different but basic services, reinforcement of government troops, among others.
likewise independent from each other although concededly, they These particular scenarios convinced the President that the
have the same trajectory, which is, the nullification of the atrocities had already escalated to a level that risked public safety
presidential proclamation. and thus impelled him to declare martial law and suspend the
4. The parameters for determining the sufficiency of factual basis privilege of the writ of habeas corpus.
are as follows: l) actual rebellion or invasion; 2) public safety 9. a.) The calling out power is in a different category from the power
requires it; the first two requirements must concur; and 3) there is to declare martial law and the power to suspend the privilege of the
probable cause for the President to believe that there is actual writ of habeas corpus; nullification of Proclamation No. 216 will not
rebellion or invasion. affect Proclamation No. 55.
The President needs only to satisfy probable cause as the standard The President may exercise the power to call out the Armed Forces
of proof in determining the existence of either invasion or rebellion independently of the power to suspend the privilege of the writ of
for purposes of declaring martial law, and that probable cause is habeas corpus and to declare martial law. Even so, the Court’s
the most reasonable, most practical and most expedient standard review of the President’s declaration of martial law and his calling
by which the President can fully ascertain the existence or non- out the Armed Forces necessarily entails separate proceedings
existence of rebellion necessary for a declaration of martial law or instituted for that particular purpose.
suspension of the writ. To require him to satisfy a higher standard b.) Neither would the nullification of Proclamation No. 216 result in
of proof would restrict the exercise of his emergency powers. the nullification of the acts of the President done pursuant thereto.
5. The judicial power to review the sufficiency of factual basis of the Under the operative fact doctrine,” the unconstitutional statute is
declaration of martial law or the suspension of the privilege of the recognized as an “operative fact” before it is declared
writ of habeas corpus does not extend to the calibration of the unconstitutional.
President’s decision of which among his graduated powers he will ***
avail of in a given situation. To do so would be tantamount to an Verily, the Court upholds the validity of the declaration of martial
incursion into the exclusive domain of the Executive and an law and suspension of the privilege of the writ of habeas corpus in
infringement on the prerogative that solely, at least initially, lies with the entire Mindanao region. The Court FINDS sufficient factual
the President. bases for the issuance of Proclamation No. 216 and DECLARES it
6. a.) Inclusion of “other rebel groups ” does not make Proclamation as CONSTITUTIONAL. Accordingly, the consolidated Petitions are
No. 216 vague. The term “other rebel groups” in Proclamation No. hereby DISMISSED.
216 is not at all vague when viewed in the context of the words that
accompany it. Verily, the text of Proclamation No. 216 refers to Political Law. Proclamation No. 216 declaring a state of martial
“other rebel groups” found in Proclamation No. 55, which it cited by law and suspending the privilege of the writ of habeas corpus in the
way of reference in its Whereas clauses. whole of Mindanao. Paragraph 3, Section 18, Article VII of the
b.) Lack of guidelines/operational parameters does not make Constitution
Proclamation No. 216 vague. Operational guidelines will serve only
as mere tools for the implementation of the proclamation.
There is no need for the Court to determine the constitutionality of Meaning of Locus Standi: “[T]he only requisite for standing to
the implementing and/or operational guidelines, general orders, challenge the validity of the suspension is that the challenger
arrest orders and other orders issued after the proclamation for be a citizen. He need not even be a taxpayer.
being irrelevant to its review. Any act committed under the said
orders in violation of the Constitution and the laws should be Sufficiency of factual basis of the proclamation of martial
resolved in a separate proceeding. Finally, there is a risk that if the law. A plain reading of the afore-quoted Section 18, Article VII
Court wades into these areas, it would be deemed as trespassing reveals that it specifically grants authority to the Court to determine
into the sphere that is reserved exclusively for Congress in the the sufficiency of the factual basis of the proclamation of martial
exercise of its power to revoke. law or suspension of the privilege of the writ of habeas corpus.
7. There is sufficient factual basis for the declaration of martial law
and the suspension of the writ of habeas corpus. By a review of the
The unique features of the third paragraph of Section 18,
facts available to him that there was an armed public uprising, the
Article VII clearly indicate that it should be treated as sui
culpable purpose of which was to remove from the allegiance to
generis separate and different from those enumerated in
the Philippine Government a portion of its territory and to deprive
Article VIII.
the Chief Executive of any of his power and prerogatives, leading
the President to believe that there was probable cause that the
crime of rebellion was and is being committed and that public safety
requires the imposition of martial law and suspension of the
privilege of the writ of habeas corpus. The President as the Commander-in-Chief wields the
After all, what the President needs to satisfy is only the standard of extraordinary powers of: a) calling out the armed forces; b)
probable cause for a valid declaration of martial law and suspending the privilege of the writ of habeas corpus; and c)
suspension of the privilege of the writ of habeas corpus. declaring martial law. These powers may be resorted to only
8. Terrorism neither negates nor absorbs rebellion. Rebellion may under specified conditions.
be subsumed under the crime of terrorism, which has a broader
scope covering a wide range of predicate crimes. In fact, rebellion
is only one of the various means by which terrorism can be Extraordinary powers of the President distinguished.
committed.
Meanwhile, public safety requires the declaration of martial law and Among the three extraordinary powers, the calling out power
the suspension of the privilege of the writ of habeas corpus in the is the most benign and involves ordinary police action The
whole of Mindanao. For a declaration of martial law or suspension President may resort to this extraordinary power whenever it
of the privilege of the writ of habeas corpus to be valid, there must becomes necessary to prevent or suppress lawless violence,
be concurrence of 1.) actual rebellion or invasion and 2.) the public invasion, or rebellion. “[T]he power to call is fully
safety requirement. discretionary to the President;”the only limitations being that
In his report, the President noted that the acts of violence he acts within permissible constitutional boundaries or in a
perpetrated by the ASG and the Maute Group were directed not manner not constituting grave abuse of discretion.In fact,
“the actual use to which the President puts the armed forces of his powers and prerogatives to enforce the laws of the land and
is x x x not subject to judicial review.” to maintain public order and safety in Mindanao, constituting the
crime of rebellion; and
The extraordinary powers of suspending the privilege of the
writ of habeas corpus and/or declaring martial law may be WHEREAS, this recent attack shows the capability of the Maute
exercised only when there is actual invasion or rebellion, and group and other rebel groups to sow terror, and cause death and
public safety requires it. The 1987 Constitution imposed the damage to property not only in Lanao del Sur but also in other parts
following limits in the exercise of these powers: “(1) a time of Mindanao.
limit of sixty days; (2) review and possible revocation by
Congress; [and] (3) review and possible nullification by the NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of
Supreme Court.” the Republic of the Philippines, by virtue of the powers vested in
me by the Constitution and by law, do hereby proclaim as follows:
1. Whether or not the petitions docketed as G.R. Nos. 231658,20. have the effect of recalling Proclamation No. 55 s. 2016; or
231771, and 231774 are the “appropriate proceeding” covered by
Paragraph 3, Section 18, Article VII of the Constitution sufficient to
invoke the mode of review required of this Court when a declaration21. also nullify the acts of the President in calling out the armed
of martial law or the suspension of the privilege of the writ forces to quell lawless violence in Marawi and other parts of the
of habeas corpus is promulgated; Mindanao region.
2. Whether or not the President in declaring martial law and After the oral argument, the parties submitted their respective
suspending the privilege of the writ of habeas corpus: memoranda and supplemental memoranda.
Thus, by inserting Section 18 in Article VII which allows To conclude that the “appropriate proceeding” refers to a Petition
judicial review of the declaration of martial law and for Certiorari filed under the expanded jurisdiction of this Court
suspension of the privilege of the writ of habeas corpus, the would, therefore, contradict the clear intention of the framers of
framers of the 1987 Constitution in effect constitutionalized the Constitution to place additional safeguards against possible
and reverted to the Lansang doctrine. martial law abuse for, invariably, the third paragraph of Section
18, Article VII would be subsumed under Section 1 of Article VIII.
In other words, the framers of the Constitution added the
1. d) Purpose of Section 18, Article VII is to provide additional safeguard under the third paragraph of Section 18, Article VII on
safeguard against possible abuse by the President on the top of the expanded jurisdiction of this Court.
exercise of the extraordinary powers.
We, therefore, hold that the Court can simultaneously exercise its
Thus, the power to review by the Court and the power to revoke power of review with, and independently from, the power to
by Congress are not only totally different but likewise independent revoke by Congress. Corollary, any perceived inaction or default
from each other although concededly, they have the same on the part of Congress does not deprive or deny the Court of its
trajectory, which is, the nullification of the presidential power to review.
proclamation. Needless to say, the power of the Court to review
can be exercised independently from the power of revocation of
Congress. 1. The judicial power to review the sufficiency of factual basis
of the declaration of martial law or the suspension of the
privilege of the writ of habeas corpus does not extend to the
1. b) The framers of the 1987 Constitution intended the judicial calibration of the President’s decision of which among his
power to review to be exercised independently from the graduated powers he will avail of in a given situation.
congressional power to revoke.
3. QUESADA. But now, if they cannot meet because they have been1. a) Extraordinary powers of the President distinguished.
arrested or that the Congress has been padlocked, then who is
going to declare that such a proclamation was not warranted? Among the three extraordinary powers, the calling out power
is the most benign and involves ordinary police action The
xxx President may resort to this extraordinary power whenever it
becomes necessary to prevent or suppress lawless violence, have the effect of law but strictly in a theater of war, not in
invasion, or rebellion. “[T]he power to call is fully the situation we had during the period of martial law. In other
discretionary to the President;”the only limitations being that words, there is an effort here to return to the traditional
he acts within permissible constitutional boundaries or in a concept of martial law as it was developed especially in
manner not constituting grave abuse of discretion.In fact, American jurisprudence, where martial law has reference to
“the actual use to which the President puts the armed forces the theater of war.
is x x x not subject to judicial review.”
xxx
The extraordinary powers of suspending the privilege of the
writ of habeas corpus and/or declaring martial law may be 1. BERNAS. This phrase was precisely put here because we have
exercised only when there is actual invasion or rebellion, and clarified the meaning of martial law; meaning, limiting it to martial
public safety requires it. The 1987 Constitution imposed the law as it has existed in the jurisprudence in international law, that
following limits in the exercise of these powers: “(1) a time it is a law for the theater of war. In a theater of war, civil courts
limit of sixty days; (2) review and possible revocation by are unable to function. If in the actual theater of war civil
Congress; [and] (3) review and possible nullification by the courts, in fact, are unable to function, then the military
Supreme Court.” commander is authorized to give jurisdiction even over
civilians to military courts precisely because the civil courts
The framers of the 1987 Constitution eliminated insurrection, are closed in that area. But in the general area where the civil
and the phrase “imminent danger thereof” as grounds for the courts are open then in no case can the military courts be
suspension of the privilege of the writ of habeas corpus or given jurisdiction over civilians. This is in reference to a
declaration of martial law. They perceived the phrase theater of war where the civil courts, in fact, are unable to
“imminent danger” to be “fraught with possibilities function.
of abuse;”besides, the calling out power of the President “is
sufficient for handling imminent danger.” 2. FOZ. It is a state of things brought about by the realities of the
situation in that specified critical area.
The powers to declare martial law and to suspend the
privilege of the writ of habeas corpus involve curtailment and 3. BERNAS. That is correct.
suppression of civil rights and individual freedom. Thus, the
declaration of martial law serves as a warning to citizens that
the Executive Department has called upon the military to 4. FOZ. And it is not something that is brought about by a
assist in the maintenance of law and order, and while the declaration of the Commander-in-Chief.
emergency remains, the citizens must, under pain of arrest
and punishment, not act in a manner that will render it more 5. BERNAS. It is not brought about by a declaration of the
difficult to restore order and enforce the law.As such, their Commander-in-Chief. The understanding here is that the phrase
exercise requires more stringent safeguards by the ‘nor authorize the conferment of jurisdiction on military courts and
Congress, and review by the Court. agencies over civilians’ has reference to the practice under the
Marcos regime where military courts were given jurisdiction over
1. b) What really happens during martial law? civilians. We say here that we will never allow that except in areas
where civil courts are, in fact, unable to function and it becomes
necessary for some kind of court to function.
During the oral argument, the following questions cropped up:
What really happens during the imposition of martial law? What
powers could the President exercise during martial law that he A state of martial law is peculiar because the President, at
could not exercise if there is no martial law? Interestingly, these such a time, exercises police power, which is normally a
questions were also discussed by the framers of the 1987 function of the Legislature. In particular, the President
Constitution, viz.: exercises police power, with the military’s assistance, to
ensure public safety and in place of government agencies
which for the time being are unable to cope with the
1. BERNAS. That same question was asked during the meetings of condition in a locality, which remains under the control of the
the Committee: What precisely does martial law add to the power State.
of the President to call on the armed forces? The first and second
lines in this provision state:
In David v. President Macapagal-Arroyo, the Court, quoting
Justice Vicente V. Mendoza’s (Justice Mendoza) Statement
A state of martial law does not suspend the operation of the before the Senate Committee on Justice on March 13, 2006,
Constitution, nor supplant the functioning of the civil courts stated that under a valid declaration of martial law, the President
or legislative assemblies… as Commander-in-Chief may order the “(a) arrests and seizures
without judicial warrants; (b) ban on public assemblies; (c)
The provision is put there, precisely, to reverse the doctrine [takeover] of news media and agencies and press censorship;
of the Supreme Court. I think it is the case of Aquino v. and (d) issuance of Presidential Decrees x x x”.
COMELEC where the Supreme Court said that in times of
martial law, the President automatically has legislative Worthy to note, however, that the above-cited acts that the
power. So these two clauses denied that. A state of martial President may perform do not give him unbridled discretion
law does not suspend the operation of the Constitution; to infringe on the rights of civilians during martial law. This is
therefore, it does not suspend the principle of separation of because martial law does not suspend the operation of the
powers. Constitution, neither does it supplant the operation of civil
courts or legislative assemblies. Moreover, the guarantees
The question now is: During martial law, can the President issue under the Bill of Rights remain in place during its pendency.
decrees? The answer we gave to that question in the Committee And in such instance where the privilege of the writof habeas
was: During martial law, the President may have the powers corpus is also suspended, such suspension applies only to
of a commanding general in a theatre of war. In actual war those judicially charged with rebellion or offenses connected
when there is fighting in an area, the President as the with invasion.
commanding general has the authority to issue orders which
Clearly, from the foregoing, while martial law poses the most writ of habeas corpus. Considering that the proclamation of
severe threat to civil liberties, the Constitution has martial law or suspension of the privilege of the writ of habeas
safeguards against the President’s prerogative to declare a corpus is now anchored on actual invasion or rebellion and when
state of martial law. public safety requires it, and is no longer under threat or in
imminent danger thereof, there is a necessity and urgency for the
1. c) “Graduation” of powers refers to hierarchy based on President to act quickly to protect the country. The Court, as
scope and effect; it does not refer to a sequence, order, or Congress does, must thus accord the President the same leeway
arrangement by which the Commander-in-Chief must adhere by not wading into the realm that is reserved exclusively by the
to. Constitution to the Executive Department.
Indeed, the 1987 Constitution gives the “President, as 1. f) The recommendation of the Defense Secretary is not a
Commander-in-Chief, a ‘sequence’ of ‘graduated power[s]’. condition for the declaration of martial law or suspension of
From the most to the least benign, these are: the calling out the privilege of the writ of habeas corpus.
power, the power to suspend the privilege of the writ
of habeas corpus, and the power to declare martial law.” It Even the recommendation of, or consultation with, the Secretary
must be stressed, however, that the graduation refers only to of National Defense, or other high-ranking military officials, is not
hierarchy based on scope and effect. It does not in any a condition for the President to declare martial law. A plain
manner refer to a sequence, arrangement, or order which the reading of Section 18, Article VII of the Constitution shows
Commander-in-Chief must follow. This so-called “graduation that the President’s power to declare martial law is not
of powers” does not dictate or restrict the manner by which subject to any condition except for the requirements of
the President decides which power to choose. actual invasion or rebellion and that public safety requires it.
Besides, it would be contrary to common sense if the
These extraordinary powers are conferred by the decision of the President is made dependent on the
Constitution with the President as Commander-in-Chief; it recommendation of his mere alter ego. Rightly so, it is only
therefore necessarily follows that the power and prerogative on the President and no other that the exercise of the powers
to determine whether the situation warrants a mere exercise of the Commander-in-Chief under Section 18, Article VII of
of the calling out power; or whether the situation demands the Constitution is bestowed.
suspension of the privilege of the writ of habeas corpus; or
whether it calls for the declaration of martial law, also lies, at 1. g) In any event, the President initially employed the most
least initially, with the President. The power to choose, benign action-the calling out power-before he declared
initially, which among these extraordinary powers to wield in martial law and suspended the privilege of the writ of habeas
a given set of conditions is a judgment call on the part of the corpus.
President. As Commander-in-Chief, his powers are broad
enough to include his prerogative to address exigencies or At this juncture, it must be stressed that prior to Proclamation No.
threats that endanger the government, and the very integrity 216 or the declaration of martial law on May 23, 2017, the
of the State. President had already issued Proclamation No. 55 on September
4, 2016, declaring a state of national emergency on account of
It is thus beyond doubt that the power of judicial review does not lawless violence in Mindanao. This, in fact, is extant in the first
extend to calibrating the President’s decision pertaining to which Whereas Clause of Proclamation No. 216. Based on the
extraordinary power to avail given a set of facts or conditions. To foregoing presidential actions, it can be gleaned that although
do so would be tantamount to an incursion into the exclusive there is no obligation or requirement on his part to use his
domain of the Executive and an infringement on the prerogative extraordinary powers on a graduated or sequential basis, still the
that solely, at least initially, lies with the President. President made the conscious and deliberate effort to first employ
the most benign from among his extraordinary powers. As the
1. d) The framers of the 1987 Constitution intended the initial and preliminary step towards suppressing and preventing
Congress not to interfere a priori in the decision-making the armed hostilities in Mindanao, the President decided to use
process of the President. his calling out power first. Unfortunately, the situation did not
improve; on the contrary, it only worsened. Thus, exercising his
sole and exclusive prerogative, the President decided to
The elimination by the framers of the 1987 Constitution of the impose martial law and suspend the privilege of the writ
requirement of prior concurrence of the Congress in the of habeas corpus on the belief that the armed hostilities in
initial imposition of martial law or suspension of the privilege Mindanao already amount to actual rebellion and public
of the writ of habeas corpus further supports the conclusion safety requires it.
that judicial review does not include the calibration of the
President’s decision of which of his graduated powers will be
availed of in a given situation. Voting 28 to 12, the framers of 1. Whether or not Proclamation No. 216 may be considered
the 1987 Constitution removed the requirement of vague and thus void because of (a) its inclusion of “other
congressional concurrence in the first imposition of martial rebel groups”; and (b) the absence of any guideline
law and suspension of the privilege. specifying its actual operational parameters within the entire
Mindanao region.-NO