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DE CASTRO v JBC 6 petitions and 1 administrative matter (A.M.) FACT: May 17, 2010 - Chief Justice Reynato S.

Puno took a compulsory retirement just days after the presidential elections (May 10, 2010). Petitions and AM filed Feb. 9, 2010 & Feb. 23, 2010 - G.R. No. 191002 and G.R. No. 191149: petitions filed by Arturo M. De Castro and John G. Peralta, praying that the JBC be compelled to submit the list of at least three nominees for the position of the next Chief Justice (CJ). Feb. 10, 2010 G.R. 191032 Jaime N. Soriano proposes to prevent the JBC from conducting its search, selection, and nomination proceedings for the position of CJ. Feb 11, 2010 G.R. 191057 PHILCONSA wants JBC to submit its list of nominees for the position of CJ, because the incumbent President is not covered by the prohibition that applies only to appointments in the Executive Department. Feb 15, 2010 A.M. No. 10-2-5-SC, Estelito M. Mendoza seeks a ruling from the court for guidance of the JBC on whether Section 15, Article 1 VII applies to the appointments of the Judiciary. Mar 9, 2010 G.R. 191342 Amador Tolentino, Jr. and Roland Inting, IBP, Gov. for So. Luzon and Eastern Visayas want to enjoin and restrain the JBC from submitting a list of nominees for the position of CJ to the president for appointment during the 2 month period.2 ISSUES: (main) WON the incumbent President (iPres) can appoint the next CJ3? G.R. No. 191002 a. Does the JBC have the power and authority to resolve question of whether the iPres can appoint a Chief Justice during the election ban period? b. Does the iPres have the power and authority to appoint during the election ban the successor of CJ Puno when he vacates the position of CJ on his retirement? G.R. No. 191032 a. Is the power to appoint the CJ vested in the SC? G.R. No. 191057 a. Is Section 15, Article VII of the Constitution applicable only to positions in the Exec. Dept? b. Assuming Section 15, Article VII of the Constitution applies to the Judiciary, may such appointments be excepted because they are impressed with public interest, thereby justifying these appointments during period of prohibition? c. Does the JBC have the authority to decide WON to include and submit the names of nominees who showed interest for the position of CJ on the understanding that his/her nomination will be submitted to the next Pres because of the ban of presidential appointments from Mar 11 - June 30, 2010? A.M. No. 10-2-5-SC a. Does Section 15, Article VII of the Constitution apply to appointments to positions in the Judiciary under Section 4 9, Article VIII of the Constitution? b. May PGMA make appointments to the Judiciary after Mar 10, 2010? G.R. No. 191149 a. Does the JBC have the discretion to withhold the submission of the short list to PGMA? G.R. No. 191342 a. Does the JBC have the authority to submit the nominees to the iPres without committing a grave violation of the Constitution prohibiting the iPres from making midnight appointments two months before the next presidential elections?
Section 9. The Members of the Supreme Court and judges of the lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.
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Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. 2 Ibid. 3 Appointment of Chief Justice is any president s most important appointment.

b. Is any act performed by the JBC constitutionally invalid in view of the JBC s illegal composition allowing each member from the Senate and the House of Reps to have one vote each? Feb 16, 2010 - the Court directed the JBC and the Office of the Solicitor General (OSG) to comment on the petitions, except that filed in G.R. No. 191342. Feb 26, 2010 - JBC submitted its comment, reporting that the next stage of the process for the selection of the nominees of CJ would be the public interview of the candidates and the preparation of the short list of candidates. Feb 26, 2010 - OSG also submitted its comment, essentially stating that the iPres can appoint the successor of CJ Puno upon his retirement. The OSG insists that: (a) writ of prohibition cannot prevent JBC from recommending appointees in the Judiciary; (b) JBC was acting within its jurisdiction when it commenced and set in motion the process of selecting the nominees to be submitted to the Pres for the position of CJ (c) petitioner Soriano s theory that it is the SC who has the power to appoint the CJ is incorrect, and proceeds from his misinterpretation of the phrase members of the Supreme Court found in Section 9, Article VIII of the Constitution as referring only to the Associate Justices (d) a writ of mandamus can issue to compel JBC to submit the list of nominees to the Pres, considering that its duty to prepare the list of at least three nominees is unqualified, and the submission of the list is a ministerial act that the JBC is mandated to perform under the Constitution; JBC is not vested with the power to resolve who has the authority to appoint the next CJ and, therefore, has no discretion to withhold the list from the President; (e) a writ of mandamus cannot issue to compel JBC to include or exclude particular candidates as nominees, considering that there is no imperative duty on its part to include in or exclude from the list particular individuals, but, on the contrary, the

JBC s determination of who it nominates to the President is an exercise of a discretionary duty.

The iPres may appoint the next CJ, because the prohibition under Section 15, Article VII of the Constitution does not apply to appointments in the Supreme Court according to the OSG. It argues that any vacancy in the Supreme Court must be filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the Constitution; the prohibition found in Article VII (Executive Department) was not written in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII. Lastly, the OSG urges that there are compelling reasons for the iPres to appoint the next CJ .
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HELD: a. Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to other appointments to the Judiciary. (only to the Executive Department.) b. The appointment of the next CJ by the iPres is preferable to having the Associate Justice who is first in precedence take over. The lack of any appointed occupant of the office of CJ harms the independence of the Judiciary, because the CJ is the head of the entire Judiciary. The CJ performs functions absolutely significant to the life of the nation. With the entire SC being the PET, the CJ is the Chairman of PET. There being no obstacle to the appointment of the next CJ, aside from its being mandatory for the iPres to make within the 90-day period from May

(a) a deluge of cases involving sensitive political issues is quite expected ; (b) the Court acts as the Presidential Electoral Tribunal (PET) is the sole judge of all contests relating to the election, returns, and qualifications of the President and Vice President; (c) if history has shown that during ordinary times the CJ was appointed immediately upon the occurrence of the vacancy, from the time of the effectivity of the Constitution, there is now even more reason to appoint the next CJ immediately upon the retirement; and (d) should the next CJ come from among the incumbent Associate Justices of the SC, thereby causing a vacancy, it also becomes incumbent upon JBC to start the selection process for the filling up of the vacancy in accordance with the constitutional mandate.

c.

17, 2010, there is no justification to insist that the successor of Chief Justice Puno be appointed by the next President. Writ of mandamus does not lie against the JBC 6 Mandamus is not available to direct the exercise of a judgment or discretion in a particular way. We find no sufficient grounds to grant the petitions for mandamus and to issue a writ of mandamus against the JBC. The actions for that purpose are premature, because it is clear that the JBC still has until May 17, 2010. Under the Constitution, it is mandatory for the JBC to submit to the 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 90-day period from the occurrence of the vacancy. The JBC has no discretion to submit the list to the President after the vacancy occurs, because that shortens the 90-day period allowed by the Constitution for the President to make the appointment. For the JBC to do so will be unconscionable on its part, considering that it will thereby effectively and illegally deprive the President of the ample time granted under the Constitution to reflect on the qualifications of the nominees named in the list of the JBC before making the appointment.

The petition for prohibition in G.R. No. 191342 is similarly devoid of merit. The challenge mounted against the composition of the JBC based on the allegedly unconstitutional allocation of a vote each to the ex officio members from the Senate and the House of Representatives, thereby prejudicing the chances of some candidates for nomination by raising the minimum number of votes required in accordance with the rules of the JBC, is not based on the petitioners actual interest, because they have not alleged in their petition that they were nominated to the JBC to fill some vacancies in the Judiciary. Thus, the petitioners lack locus 7 standi on that issue. WHEREFOR: 1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149, and the petition for mandamus in G.R. No. 191057 for being premature; 2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of merit; and 3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council: (a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created by the compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010; (b) To prepare the short list of nominees for the position of Chief Justice; (c) To submit to the incumbent President the short list of nominees for the position of Chief Justice on or before May 17, 2010; and (d) To continue its proceedings for the nomination of candidates to fill other vacancies in the Judiciary and submit to the President the short list of nominees corresponding thereto in accordance with this decision.

The duty of the JBC to submit a list of nominees before the start of the President s mandatory 90-day period to appoint is ministerial, but its selection of the candidates whose names will be in the list to be submitted to the President lies within the discretion of the JBC. The object of the petitions for mandamus herein should only refer to the duty to submit to the President the list of nominees for every vacancy in the Judiciary, because in order to constitute unlawful neglect of duty, there must be an unjustified delay in performing that duty. For mandamus to lie against the JBC, therefore, there should be an unexplained delay on its part in recommending nominees to the Judiciary, that is, in submitting the list to the President. d. Writ of prohibition does not lie against the JBC Only the President can appoint the Chief Justice. Hence, Soriano s petition for prohibition in G.R. No. 191032, which proposes to prevent the JBC from intervening in the process of nominating the successor of Chief Justice Puno, lacks merit.

For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear legal right to the act demanded; (b) it must be the duty of the defendant to perform the act, because it is mandated by law; (c) the defendant unlawfully neglects the performance of the duty enjoined by law; (d) the act to be performed is ministerial, not discretionary; and (e) there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law.

a right of appearance in a court of justice on a given question.