J.A.B. Bulao & Associates

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-19313             January 19, 1962

DOMINADOR R. AYTONA, petitioner,
vs.
ANDRES V. CASTILLO, ET AL., respondents.

R E S O L U T I O N.

BENGZON, C.J.:

Without prejudice to the subsequent promulgation of more extended opinion, the Court adopted today, the following resolutions: .

On December 29, 1961, then President Carlos P. Garcia appointed Dominador R. Aytona as ad interim Governor of the Central Bank. On the same day, the latter took the corresponding oath.

On December 30, 1961, at noon, President-elect Diosdado Macapagal assumed office; and on December 31, 1961, he issued Administrative Order No. 2 recalling, withdrawing, and cancelling all ad interim appointment made by President Garcia after December 13, 1961, (date when he, Macapagal, had been proclaimed elected by the Congress). On January 1, 1962, President Macapagal appointed Andres V. Castillo as ad interim Governor of the Central Bank, and the latter qualified immediately.

On January 2, 1962, both appointed exercised the powers of their office, although Castillo informed Aytona of his title thereto; and some unpleasantness developed in the premises of the Central Bank. However, the next day and thereafter, Aytona was definitely prevented from holding office in the Central Bank.

So, he instituted this proceeding which is practically, a quo warranto, challenging Castillo’s right to exercise the powers of Governor of the Central Bank. Aytona claims he was validly appointed, had qualified for the post, and therefore, the subsequent appointment and qualification of Castillo was void, because the position was then occupied by him. Castillo replies that the appointment of Aytona had been revoked by Administrative Order No. 2 of Macapagal; and so, the real issue is whether the new President had power to issue the order of cancellation of the ad interim appointments made by the past President, even after the appointees had already qualified.1äwphï1.ñët

The record shows that President Garcia sent to the Commission on Appointments — which was not then in session — a communication dated December 29, 1961, submitting “for confirmation” ad interim appointments of assistant director of lands, councilors, mayors, members of the provincial boards, fiscals, justices of the peace, officers of the army, etc.; and the name of Dominador R. Aytona as Governor of the Central Bank occupies number 45, between a justice of the peace and a colonel of the Armed Forces.

Another communication of President Garcia bearing the same date, submitted a list of ad interim appointments of Foreign Affairs officers, judges, fiscals, chiefs of police, justices of the peace, mayors, councilors, etc. number 63 of which was that of Dominador R. Aytona for Governor of the Philippines in the Boards of International Monetary Fund, International Bank for Reconstruction and Development, etc.

A third communication likewise dated December 29, 1961, addressed to the Commission on Appointments submitted for confirmation 124 names of persons appointed as judges of first instance, members of provincial boards, and boards of government corporations, fiscals, justice of the peace, even one associate justice of this Court occupying position No. 8 and two associate justices of the Court of Appeals (9 and 10) between an assistant of the Solicitor-General’s Office, and the chairman of the board of tax appeals of Pasay City, who in turn are followed by judges of first instance, and inserted between the latter is the name of another associate justice of the Court of Appeals.

There were other appointments thus submitted by President Garcia on that date, December 29, 1961. All in all, about three hundred fifty (350) “midnight” or “last minute” appointments.

In revoking the appointments, President Macapagal is said to have acted for these and other reasons: (1) the outgoing President should have refrained from filling vacancies to give the new President opportunity to consider names in the light of his new policies, which were approved by the electorate in the last elections; (2) these scandalously hurried appointments in mass do not fall within the intent and spirit of the constitutional provision authorizing the issuance of ad interim appointments; (3) the appointments were irregular, immoral and unjust, because they were issued only upon the condition that the appointee would immediately qualify obviously to prevent a recall or revocation by the incoming President, with the result that those deserving of promotion or appointment who preferred to be named by the new President declined and were by-passed; and (4) the abnormal conditions surrounding the appointment and qualifications evinced a desire on the part of the outgoing President merely subvert the policies of the incoming administration.

It is admitted that many of the persons mentioned in the communication to the Commission on Appointments dated December 29, 1961, did not qualify. There is evidence that in the night of December 29, there was a scramble in Malacañan of candidates for positions trying to get their written appointments or having such appointments changed to more convenient places, after some last minute bargaining. There was unusual hurry in the issuance of the appointments — which were not coursed through the Department Heads — and in the confusion, a woman appointed judge was designated “Mr.” and a man was designated “Madam.” One appointee who got his appointment and was required to qualify, resorted to the rush of asking permission to swear before a relative official, and then never qualified.

We are informed, it is Malacañan’s practice — which we find to be logical — to submit ad interim appointments only when the Commission on Appointments is in session. One good reason for the practice is that only those who have accepted the appointment and qualified are submitted for confirmation. Nevertheless, this time, Malacañan submitted its appointments on the same day they were issued; and the Commission was not then in session; obviously because it foresaw the possibility that the incoming President would refuse to submit later the appointees of his predecessor. As a result, as already adverted to, some persons whose names were submitted for confirmation had not qualified nor accepted their appointments.

Because of the haste and irregularities, some judges of first instance qualified for districts wherein no vacancies existed, because the incumbents had not qualified for other districts to which they had been supposedly transferred or promoted.

Referring specifically to judges who had not qualified, the course of conduct adopted by Former Chief Justice Moran is cited. Being ambassador in Spainand desiring to return to this Court even as associate justice, Moran was tendered an ad interim appointment thereto by President Quirino, after the latter had lost the election to President Magsaysay, and before leaving the Presidency. Said Ambassador declined to qualify being of the opinion that the matter should be left to the incoming newly-elected President.

Of course, nobody will assert that President Garcia ceased to be such earlier than at noon of December 30, 1961. But it is common sense to believe that after the proclamation of the election of President Macapagal, his was no more than a “care-taker” administration. He was duty bound to prepare for the orderly transfer of authority the incoming President, and he should not do acts which he ought to know, would embarrass or obstruct the policies of his successor. The time for debate had passed; the electorate had spoken. It was not for him to use powers as incumbent President to continue the political warfare that had ended or to avail himself of presidential prerogatives to serve partisan purposes. The filling up vacancies in important positions, if few, and so spaced to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee’s qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and planned induction of almost all of them a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions¹ irrespective of fitness and other conditions, and thereby deprive the new administration of an opportunity to make the corresponding appointments.

Normally, when the President makes appointments the consent of the Commission on Appointments, he has benefit of their advice. When he makes ad interim appointments, he exercises a special prerogative and is bound to be prudent to insure approval of his selection either previous consultation with the members of the Commission or by thereafter explaining to them the reason such selection. Where, however, as in this case, the Commission on Appointments that will consider the appointees is different from that existing at the time of the appointment² and where the names are to be submitted by successor, who may not wholly approve of the selections, the President should be doubly careful in extending such appointments. Now, it is hard to believe that in signing 350 appointments in one night, President Garcia exercised such “double care” which was required and expected of him; and therefore, there seems to be force to the contention that these appointments fall beyond the intent and spirit of the constitutional provision granting to the Executive authority to issue ad interim appointments.

Under the circumstances above described, what with the separation of powers, this Court resolves that it must decline to disregard the Presidential Administrative Order No. 2, cancelling such “midnight” or “last-minute” appointments.

Of course, the Court is aware of many precedents to the effect that once an appointment has been issued, it cannot be reconsidered, specially where the appointee has qualified. But none of them refer to mass ad interim appointments (three-hundred and fifty), issued in the last hours of an outgoing Chief Executive, in a setting similar to that outlined herein. On the other hand, the authorities admit of exceptional circumstances justifying revocation³ and if any circumstances justify revocation, those described herein should fit the exception.

Incidentally, it should be stated that the underlying reason for denying the power to revoke after the appointee has qualified is the latter’s equitable rights. Yet it is doubtful if such equity might be successfully set up in the present situation, considering the rush conditional appointments, hurried maneuvers and other happenings detracting from that degree of good faith, morality and propriety which form the basic foundation of claims to equitable relief. The appointees, it might be argued, wittingly or unwittingly cooperated with the stratagem to beat the deadline, whatever the resultant consequences to the dignity and efficiency of the public service. Needless to say, there are instances wherein not only strict legality, but also fairness, justice and righteousness should be taken into account.

WHEREFORE, the Court exercising its judgment and discretion in the matter, hereby dismiss the action, without costs.

Labrador, Reyes, J.B.L., Paredes and De Leon, J.J., concur.

Separate Opinions

PADILLA, J., concurring:

Once more this Court has to pass upon and determine a controversy that calls for an interpretation of the provisions of the Constitution. The facts that gave rise to the petition need not be restated as they are set forth in opinion rendered for the Court. The question is whether the appointment of a person to a public office by a President whose term of office was about to expire or cease is lawful or does not contravene the Constitution; or, if lawful after the appointee has taken his oath, until when would such appointment be valid and effective. The constitutional point involved seems to have been overlooked the framers of the Constitution. It would seem that the framers, well-meaning persons that they were, never foresaw an eventuality such as the one confronting the Republic. The framers never thought and anticipated that citizen elevated by the people to such an exalted office the President of the Republic, would perform an act which though not expressly prohibited by the Constitution and the law, ought not to be done, since a sense of propriety would be enough to stop him from performing it.

The petitioner invokes section 10, paragraph 4, article VII, of the Constitution which provides that —

The President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.

Under these constitutional provisions there seems to be no doubt that the President may make the appointment, and if approved by the Commission on Appointments, it would unquestionably be lawful, valid and effective, but if disapproved or not acted upon by the Commission on Appointments then the appointment becomes ineffectual and the appointee ceases and can no longer perform the duties of the office to which he had been appointed.

It is urged that the petitioner’s appointment having been made by the President during the recess of the Congress and he having taken his oath, the appointment is lawful, valid and effective until disapproval by the Commission on Appointments or until the next adjournment of the Congress should the Commission on Appointments fail to act on it.

Ad interim appointments that the President may make during the recess of the Congress are those made during a period of time from the adjournment of the Congress to the opening session, regular or special, of the same Congress. In other words, if the President had convened in a special session the fourth Congress whose term was to expire on the 30th of December 1961 and during such session the ad interim appointments had been confirmed by the Commission on Appointments there would be little doubt that the appointments would be lawful and valid.

The government established by the Constitution is one of checks and balances to preclude and prevent arrogation of powers by officers elected or appointed under it.

Under the provisions of the Constitution “The term of office of Senators shall be six years and shall begin on the thirtieth day of December next following their election.”¹ And “The term of office of the Members of the House of Representatives shall be four years and shall begin on the thirtieth day of December next following their election.”² Under section 10, paragraph 4, article VII, of the Constitution, above quoted, the President may make appointments during the recess of the Congress, “but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.” .

The term “recess”, in its broadest sense, means and refers to the intervening period between adjournment of a regular session of one hundred days exclusive of Sundays, or of a Special session which cannot continue longer than thirty days, and the convening thereof in regular session once every year on the fourth Monday of January or in special session to consider general legislation or only such subjects as he (the President) may designate.³ And such intervening period refers to the same Congress that had adjourned and was to be convened. Such intervening period cannot refer to two different Congresses, one that has adjourned and one newly chosen or elected to meet in regular session as provided for by the Constitution, or in special session by the call of the President.

The term of the President … shall end at noon the thirtieth day of December following the expiration four years after (his) election and the term of (his) successor shall begin from such time.⁴

If the ad interim appointments made by the President during the recess of the Congress are effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress — a limitation on the power of the President — there is a cogent and strong reason for holding to be the intent of the framers of the Constitution that such appointments made by him ceased to be valid and effective after the term of the Congress existing at the time of the making of such appointments had ended or expired. The end or expiration of the of the Congress existing at the time of the making of the ad interim appointments by the President is a stronger cause or reason for the lapse or ineffectuality of such appointments than “the next adjournment of the Congress.” Since that Congress no longer exists and hence can no longer convene and then “adjourn.” The effectivity and validity of the appointment of the petitioner as Governor of the Central Bank ceased, lapsed and expired on thirtieth of December 1961. He is no longer entitled hold the office to which he had been appointed. My vote, therefore, is for the denial of the petition.

Dizon, J., concurs.

I concur with the foregoing concurring opinion of Justice Padilla, the same being based on an additional ground justifying denial of the petition under consideration.

BAUTISTA ANGELO, J., concurring: .

In addition to the reasons stated in the resolution adopted by this Court on January 19, 1962, I wish to express the following views: .

1. The “midnight appointments” made by President Garcia were extended by him under Section 10, Paragraph 4, Article VII of the Constitution which provides: “The President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.” It is clear that these appointments can only be made during the recess of Congress because they are ad interim appointments.

The term “recess” has a definite legal meaning. It means the interval between a session of Congress that has adjourned and another of the same Congress. It does not refer to the interval between the session of one Congress and that of another. In that case the interval is not referred to as a “recess” but an adjournment sine die. Thus, in the case of Tipton v. Parker, 71 Ark. 194, the court said: “The ‘recess’ here referred to by Judge Cooley means the intermission between sittings of the same body at its regular or adjourned session, and not to the interval between the final adjournment of one body and the convening of another at the next regular session. When applied to a legislative body, it means a temporary dismissal, and not an adjournment sine die.” Since the appointments in question were made after the Fourth Congress has adjourned sine die and ceased to function on December 30, 1961, they cannot partake of the nature of ad interim appointments within the meaning of the Constitution.

2. The Commission on Appointments under our constitutional set-up is not continuing body but one that co-exists with the Congress that has created it. This is so because said Commission is a creation of the Senate and of the House of Representatives. While the Senate is a continuing body, the House ceases at the end of its fourth year. It cannot therefore be continuing it being a creation of a body half of which is alive and the other half has ceased to exist. This theory can also be gleaned from the proceedings of the constitutional convention.

Thus, the preliminary draft of the Philippine Constitution provides for a permanent Commission and for the holding of sessions of the Commission even during the recess of Congress. After mature deliberation the proposal was defeated and a substitute was adopted which is now embodied in Article VI, Section 12, of our Constitution. As a matter of fact, as finally adopted, the Commission on Appointments has to be organized upon the convening of a new Congress after the election of the Speaker of the House of Representatives or of the President of the Senate, as the case may be, as provided for in Section 13, Article VI of the Constitution (Article VII, Preliminary Draft of the Constitution, Vol. 2, Aruego: The Framing of the Constitution, pp. 982, 987).

An ad interim appointment, to be complete, needs to be submitted to the Commission on Appointments one the same is constituted. This is reflected in the Constitution when it provides that “such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress” (Section 10, Paragraph 4, Article VII). This mean that it must be submitted to the Commission on Appointments of the Congress that has created it. It cannot be submitted to the Commission on Appointments of a different Congress. Since the appointments in question were submitted to the Commission on Appointments which ceased to function on December 30, 1961, they lapsed upon the cessation of said Commission. Consequently, they can be recalled by the new Chief Executive.

3. An ad interim appointment is not complete until the appointee takes the oath of office and actually takes possession of the position or enters upon the discharge of its duties. The mere taking of the oath of office without actual assumption of office is not sufficient to constitute the appointee the actual occupant thereof who may not be removed therefrom except for cause (McChesney v. Sampson, 23 S.W. 2d. 584). The case of Summers v. Ozaeta, 81 Phil., 754, cannot be cited as a precedent as to when an ad interim appointment becomes permanent and binding. That case involves a cadastral judge who was given an ad interim appointment as judge at large. After assuming the office and discharging his duties, his appointment was not confirmed. He claimed that he could still revert to his former position as cadastral judge. True, this Court made a statement therein that an ad interim appointment becomes permanent after taking the oath of office, but such statement is merely an obiter dictum because the case could have been decided on the doctrine that, having accepted an incompatible office, petitioner was deemed to have abandoned the position of cadastral judge.

In relying on certain cases for the proposition that once an appointee has taken the oath of office his appointment becomes irrevocable petitioner fails to consider that in said cases there had either been an actual discharge of duty and actual physical possession or assumption of office following the oath-taking as to constitute the appointee the occupant of the position from which he cannot be removed without cause. Even the case of Marbury v. Madison, 1 Cranch, U.S. 137, 2 L. Ed., 61, 69, cannot be invoked as a precedent, for there the appointees were merely nominated and their nominations confirmed by the Commission on Appointments even if they have later taken their oath of office. Certainly, they can no longer be deprived of their appointments for then the executive would be acting in disregard of the confirming body which is a coordinate and independent body not subject to his control.

Since the appointments in question were made not in the light of the views herein expressed, I am of the opinion that they did not ripen into valid and permanent appointments and as such were properly recalled by the new Chief Executive.

CONCEPCION, J., concurring in part and dissenting in part: .

It is well settled that the granting of writs of prohibition and mandamus is ordinarily within the sound discretion of the courts, to be exercised on equitable principles, and that said writs should be issued when the right to the relief is clear (55 C.J.S. 25, 29, 73 C.J.S. 18). Insofar as the majority resolution relied upon discretion and the equities of the case in denying said writs, I concur, therefore, in the aforementioned resolution.

However, I cannot see my way clear to subscribing the observations therein made representing the motives allegedly underlying petitioner’s appointment and that of many others who are not parties in this case, and justifying the revocation of such appointments. My reasons, among others, are: .

1. Save where the incumbent has a temporary appointment or is removable at the will of the appointing power, an appointment once complete, by the performance of all acts required by law of the appointing power, is irrevocable.

An appointment to office may be revoked at any time before the appointment becomes final and complete, but thereafter unless the appointee is removable at the will of appointing power. For the purpose of this rule, an appointment to office is complete when the last act required of the person or body vested with the appointing power has been performed. Where by constitutional, statutory, or other legal provision it is required that certain steps be taken to make effective appointment, it has been held that the appointment becomes complete beyond the possibility of recall when the last of the prescribed steps is taken, and that, where no method of appointment is provided, an appointment does not become effective and beyond recall until the appointing officer by some act or word evinces a final intent to vest the appointee with title to the office.” (67 C.J.S., pp. 161-162) .

After the act of appointment is complete, the appointing authority may not revoke its former appointment and make another. And appointment to office is complete when the last act required of the person or body vested with the appointing power has been performed. (56 C., p. 954) .

In all jurisdictions where appointment to office is regarded as an executive function, as here, an appointment to office once made is incapable of revocation or cancellation by the appointing executive in the absence of a statutory or constitutional power of removal. Barrett v. Duff 114, Kan. 220; 217 P. 918; People v. Mizner, 7 Cal. 519, State v. Williams, 222 Mo. 268, 121 S.W. 64, 17 Ann. Cas. 1006; Draper v. State, 175Ala.547, 57 So. 772, Ann. Cas. 1914D, page 305, Annotation.” (McChesney v. Sampson, 23 S.W. 2d., 584) .

May an appointment be revoked by reason of error or fraud? This question was taken up in Ex rel Coogan vs. Barbour (22 A 686) and Ex rel Scofield vs. Starr (63 A 512). The first involved a City Charter providing that its common council shall, in joint convention, appoint a prosecuting attorney. In such convention, Coogan obtained a majority of the votes cast and of the convention. Upon announcement of this result, a member of the convention offered a resolution declaring Coogan elected, but the resolution was defeated. Then, two resolutions were offered and approved: one declaring that the ballots taken were null and of no effect by reason of errors in the same and another declaring Barbour elected prosecuting attorney. The issue was who had been appointed thereto. The court held that it was Coogan, he having obtained a clear majority and there having been no error or fraud in the voting, although it did not deny the power of the convention to correct errors and to nullify the effects of fraud in the voting by invalidating the same and calling another election, had the proceedings been tainted with such error or fraud.

The second case referred to a similar provision in a city charter, to the effect that appointments by the common council shall be by ballot and that the person receiving a plurality of ballots shall be elected. The first balloting taken for the election of the city surveyor of Brigeport resulted in 25 ballots being cast. It was announced that there was one ballot more than members voting, and that there were 13 ballots for Scofield, 11 for Starr and one blank ballot. Scofield maintained that this result amounted to his appointment precluding the council from taking a new ballot but such pretense was rejected. Inasmuch as the number of ballots cast exceeded the number of persons voting, the council was justified in believing that the proceeding was not free from suspicion of fraud or mistake in the voting and, accordingly in taking another vote.

In both cases, the fraud or mistake alluded to referred to the manner of voting or of counting the ballots cast, not to the intent of the voters in choosing a particular appointee.

2. An ad interim appointment, made during a recess of Congress, is complete and irrevocable upon the performance of the last act required by law from the appointing power, even without previous notice to the appointee, or acceptance by him, or without subsequent action of the legislative organ that may terminate its effectivity.

In the case of appointment made by a single executive such as a governor, mayor, etc., it is undisputed that the appointment once made is irrevocable.

x x x           x x x           x x x

Where an appointment subject to confirmation by the senate is made by a governor during a recess of the senate, … the question arises as to whether such an appointment may be reconsidered and withdrawn by the governor before it is acted upon by the Senate.

x x x           x x x           x x x

In Barrett v. Duff (1923) 114 Kan. 220, 217 Pac. 918, where appointments made by the governor during a recess of the legislature, which appointments could not be confirmed by the senate as required by law until the next session of that body, were revoked by the governor’s successor, and other persons were appointed to the offices, such action by him being taken after the senate had convened and had taken under advisement the confirmation of the persons first appointed to the offices, but before the senate had taken any definite action with regard to such confirmation, and the senate, confirmed the first appointee, but, despite this act of the senate, commissions were issued by the governor to the second appointee, it was held, in reliance upon the terms of the statutes which provided that the governor should ‘appoint’ persons to such offices with the advice and consent of the senate, as distinguished from the provision of the Constitution of the United States governing appointments by the President, which provides that the President shall ‘nominate’ and, by and with the advice and consent of the senate, shall ‘appoint’ persons to office, that the act of the governor in making the first appointments was final and exhausted the power of the governor’s office in that regard unless and until the appointments were rejected by the senate, and that, therefore, the persons appointed by the first governor were entitled to the office. In the words of the court, ‘The power of the governor having been exercised, he had no further power of the governor having been exercised, he had no further control over the respective offices unless and until the appointees had been rejected by the senate.’ In reaching this result, the court emphasized the difference between a nomination and an appointment, holding that, where the statute relating to appointments by the governor with the consent of the senate provides that the governor shall appoint persons to the office with the consent of the senate, rather than merely nominate persons for consideration by the senate, the appointment is final and conclusive without confirmation. … .

Likewise in McChesney v. Sampson (1930) 232 Ky 395, 23 S.W. (2d.) 584, the act of governor in making a recess appointment was held to be not merely a nomination subject to revocation by the governor at any time prior to action thereon by the senate, but a final and irrevocable appointment subject only to rejection by the senate. In support of this result, it was said: ‘It is urged that appointment to the office consists of two separate acts, one by the governor and one by the senate, and until both have acted there is no appointment such as to bring the incumbent within the protection of the law. Even so, the two powers do not act concurrently, but consecutively, and action once taken and completed by the executive is not subject to reconsideration or recall. … The fact that the title to the office, and the tenure of the officer, are subject to the action of the senate, does not render incomplete the act of the chief executive in making the appointment. The appointment alone confers upon the appointee for the time being the right to take and hold the office, and constitutes the last act respecting the matter to be performed by the executive power.’ .

x x x           x x x           x x x

In People ex rel. Byder v. Mizner (1857) 7 Cal. 519, in holding that an appointment made by a governor to fill an office which had expired during a recess of the legislature was not merely an appointment to fill a vacancy which would expire at the end of the next session of the legislature, but was an appointment for a full term, and that the act of the governor during a subsequent session of the legislature, in appointing another to the office and asking his confirmation by the legislature, was unauthorized and void, it was said that, the power of the executive having been once exercised, he had no further control over the office until the appointee has been rejected by the senate.” (89 ALR, pp. 138, 139, 140.) .

3. The irrevocability of the ad interim appointment adverted to above becomes more apparent when we consider that the House, Commission on Appointments or other agency of Congress charged with the function of terminating the effectivity of such appointment, may act thereon, by approving or disapproving the same, even though the Executive had not submitted or forwarded it to said House, Commission or agency of Congress, and even though either the outgoing or the incoming Executive shall have submitted for confirmation the name of a subsequent appointee in lieu of the first one..

This was the situation met in People ex rel, Emerson vs. Shawver (30 Wyo 366, 222 Pac. 11). The facts therein were: On July 1, 1919, Governor Carey of Wyoming appointed Emerson as state engineer, to fill the vacancy caused by the resignation of its incumbent. Upon the expiration of the latter’s term, Governor Carey reappointed Emerson for a full term of six (6) years, from and after April 1, 1921. This last appointment was confirmed by the state legislature at its next session in 1923. Prior thereto, however, Governor Carey’s term had expired and his successor had appointed Shawver as state engineer. Thereupon Shawver ousted Emerson from such office. It was held that Emerson had a better right thereto; that his appointment in 1921 was a completed appointment, requiring no action by the Senate to entitle him to hold said office; that a recess appointment once made by “the executive is not subject to reconsideration or recall, “even though not as yet confirmed by the Senate, inasmuch as,” the appointment alone confers upon the appointee for the time being the right to take and hold the office, and constitutes the last act respecting the matter to be performed by the executive power”; and that, although the term of Governor Carey had expired and neither he nor his successor had forwarded Emerson’s appointment to the Senate for confirmation or requested the Senate to act upon said appointment, the same had been validly confirmed by said body, for .

The provision as to the office here in question found in the Constitution does not say that the appointment made by the Governor shall be confirmed by the Senate when requested by the former, or upon a communication by him submitting the matter to the Senate. And we perceive no substantial reason for adding by construction any such restriction upon the Senate’s right to act. (People v. Shawver, 222 P. 11; see, also, Commonwealth v. Waller, 145 Pa. 235, 23 Atl. 382; State v. Williams, 20 S.C. 13; Richardson v. Henderson, 4 Wyo. 535, 35 Pac. 517, and other cases cited in the Shawver case.) .

4. The foregoing goes to show, also, that the question whether the Commission on Appointments is or is not a continuing body can not affect the determination of the case. Besides, the constitutional provision making an ad interim appointment, if not disapproved by the Commission on Appointments, effective only until the next adjournment of Congress, clearly indicates that such Commission must have an opportunity to approve or disapprove the appointment and that its inaction, despite such opportunity, at the session of Congress next following the making of the appointment — during which it could have met, and, probably, did meet — must be understood as an expression of unwillingness to stamp its approval upon the act of the executive. No such opportunity exists when the outgoing Congress has not held any session, regular or special after the making of the appointment and before the expiration of the term of said Congress, and the new Congress has not, as yet, organized itself or even met.

5. The American rule concerning irrevocability of appointments is bolstered up in thePhilippinesby Section 4 of Article XII of the Constitution, which provides that — “no officer of employee in the Civil Service shall be removed except for cause as provided by law.” (Article VII, Section 4.) .

In fact, in his concurring opinion in Eraña vs. Vergel de Dios (85 Phil., 17), our distinguished Chief Justice pointed out that the revocation of an appointment, if feasible, “should be communicated to the appointee before the moment he qualified,” and that “any revocation thereafter, is tantamount to removal and must be judged according to the rules applicable to the removal” (emphasis ours). In the present case, the revocation of petitioner’s appointment was not communicated to him before he qualified by taking his oath of office. It is not even claimed that any of the statutory causes for removal of petitioner herein exists, or that the procedure prescribed for such removal has been complied with.

6. Once an appointee has qualified, he acquires a legal, not merely equitable right, which is protected not only by statute, but, also by the Constitution, for it cannot be taken away from him, either by revocation of the appointment or by removal, except for cause, and with previous notice and hearing, consistently with said Section 4 of Article XII of our fundamental law, and with the constitutional requirement of due process (Segovia vs. Noel, 47 Phil., 547; Sec. 67 C.J.S. 117, 42 Am. Jur. 887). (See also, People ex rel Ryan v. Green, 58 N. v. 295; People vs. Gardner, 59 Barb 198; II Lewis Sutherland Statutory Construction, pp. 1161 and 1162; Mechem on Public Officers, Sec. 389; 22 R. C. L. 377- 378; 25 Am. Dec. 690-691, 703).

7. The case of Tipton vs. Parker (74 S. W., 298) has been cited in support of the theory that Congress of the Philippines was not in “recess” on December 29, 1961, and that, accordingly, ad interim appointments could not validly be made in such date. The question involved in said case was whether a committee of the Senate of Arkansas could be authorized by the same to function after the adjournment sine die of the regular session of the state General Assembly. The State Supreme Court considered as decisive authority the view expressed by Judge Cooley, to the effect that a legislative committee “has no authority to sit during a recess of a House which appointed him, without its permission to that effect”. The issue thus hinged on the meaning of the term “recess” as used by Judge Cooley. Resolving this question, said court held that the recess referred to by Judge Cooley was “only the intermission between the sittings of the same body at its regular or adjourned session and not to the interval between the final adjournment of one body and the convening of another at the next regular session”..

In this connection, it should be noted that, as an agency of the Senate, the committee involved in said case could not operate for its principal beyond the latter’s term. Moreover, under the Constitution of Arkansas, the regular biennial session of the General Assembly could not exceed 60 days, unless by a vote of 2/3 of the members of each of the two Houses of the legislature. Inasmuch as the Senate could not, without the concurrence of the House, directly extend the period of its regular session, neither could it, without such concurrence, indirectly extend said period, by granting its aforementioned committee the authority to function beyond said period. As stated by the Court “the committee, being the mere agency of the body which appointed it, dies when the body itself dies, unless it is continued by law”, which the Senate may not enact, without the concurrence of the House..

The decision in said case did not seek to define the meaning of the term “recess” as used in any constitution or statute. It did not even refer to the authority to make appointments during “recess”. It has absolutely no bearing, therefore, on the issue before us.

Upon the other hand, Dr. Jose M. Aruego, a prominent member of the constitutional convention, says, in his work on “The Framing of the Philippine Constitution” (Vol I, pp. 434-435), that the draft of the provision on ad interim appointments by the President, as submitted by the corresponding committee, followed the principles of the Jones Law and that the recommendation of the committee was readily approved on the floor of the convention, although the committee on style gave said provision its present phraseology. Pursuant to the Jones Law, “appointments made while the Senate is not in session shall be effective either until disapproval or until the next adjournment of the Senate”. Hence, the term “recess” appearing in Section 10(4) of Article VII of our Constitution should be construed to mean “while Congress is not in session” and this is confirmed by the practice consistently observed in the Philippines for time immemorial, as well as the ad interim appointment extended by President Macapagal to respondent Castillo.

8. The case of McChesney vs. Sampson (23 S. W. 2d. 584) has, also, been invoked in support of the proposition that “an ad interim appointment is not complete until the appointee takes the oath of office and actually takes possession of the position or enters upon the discharge of its duties” and that, before such actual taking of possession, though after the oath taking, the appointee may be removed without cause.

We have not found in said case anything justifying such claim. The issue in said case was whether a state governor could recall an unconfirmed appointment of McChesney to the state textbook commission when there had been no session of the Senate subsequent to the appointment, and such issue was decided in the negative.

Although, in addition to accepting the appointment, McChesney had qualified and exercised the function of the office, the decision of the Court clearly indicates that it was not necessary for him either to discharge the duties of the office or even to take the oath of office, in order to render his appointment irrevocable. The Court explicitly declared that the appointment, once “completed by the executive is not subject to reconsideration or recall;” that the appointment “is complete when the appointing authority has performed the acts incumbent upon him to accomplish the purpose;” and that in the case of recess appointments, like that of McChesney,” the appointment alone confers upon the appointee for the time being the right to take and hold the office and constitutes the last act respecting the matter to be performed by the executive power” completing the appointment and rendering the same irrevocable.

In short, the McChesney case is authority for the petitioner herein.

9. Most, if not all appointments made by the President have two (2) aspects, namely, the legal and the political. The first refers to his authority to make the appointment. The second deals with the wisdom in the exercise of such authority, as well as with its propriety. Whether given vacancy or number of vacancies should be filled, or who among several qualified persons shall be chosen, or whether a given appointment or number of appointment will favor the political party to whom the power of appointment belongs and will injure the interest of a rival political party and to what extent, are, to my mind, essentially and typically political matters. Hence, I believe that the question whether certain appointments should be sanctioned or turned down by reason of the improper, immoral or malevolent motives with which said matters were allegedly handled is, likewise, clearly political, and as such, its determination belongs, not to the courts of justice (Vera vs. Avelino, 77 Phil., 192, 205; 16 C.J.S 689-690; Willoughby on the Constitution, Vol. III 1326-1327), but to the political organ established precisely to check possible abuses in the exercise of the appointing power — the Commission on Appointments.

Indeed, I can hardly conceive of any question more patently and characteristically political than this one, or more appropriate for determination of said body. Neither the possible or probable control thereof by members of the Nacionalista Party nor the number of offices or appointments involved can affect the nature of the issue. Surely, its political character is the same whichever political party may have the largest number of votes in the Commission on Appointments. The big number of said appointments merely tend to make more manifest the political complexion thereof and its non-justifiable nature.

10. In Osmeña vs. Pendatum (L-17144, October 28, 1960), we refused to disturb the action of the House of Representatives in suspending a member thereof — who had made derogatory imputations against the President of thePhilippines — upon the ground that such imputations constituted a breach of the courtesy due to a coordinate branch of the Government. Yet, in the present case, imputations similarly derogatory to the same branch of the Government are, in effect, made in the majority resolution.

I cannot see how such imputations can be reconciled with the position taken by this Court in the Osmeña case and in other cases (Barcelona vs. Baker, 5 Phil., 87; Severino vs. Governor-General, 16 Phil., 366; Abueva vs. Wood, 45 Phil., 612; Alejandrino vs. Quezon, 46 Phil., 85; Mabanag vs. Lopez Vito, 78 Phil., 1; Cabili vs. Francisco, L-4638, May 8, 1951) in which it “fastidiously observed” the theory of separation of powers (Osmeña vs. Pendatum, supra). Thus, in Santos vs. Yatco (55 Off. Gaz. 8641), in which a department head was sought to be enjoined from electioneering, in view of the explicit provision of the Civil Service Act of 1959 (Republic Act No. 2260, section 29), prohibiting all officers and employees in the civil service, “whether in the competitive or classified, or non-competitive or unclassified service,” from engaging directly or indirectly in partisan political activities or taking part in any election except to vote, we held that the issue therein raised was one of “impropriety as distinguished from illegality,” and that, as such, it “is not justiciable by this Court.” In Mabanag vs. Lopez Vito (78 Phil., 1), we refused to decide, upon the same ground, whether specified numbers of votes constituted three-fourths of all members of each House of Congress. In Vera vs. Avelino (77 Phil., 192), we not only declared that “the judiciary is not the repository of remedies for all political or social evils,” but, also, quoted with approval the statement, made in Alejandrino vs. Quezon (46 Phil., 81), to the effect that “the judicial department has no power to revise even the most arbitrary and unfair action of the legislative department, or of either House thereof, taken in pursuance of the power committed exclusively to that department by the Constitution.” (Emphasis ours.) .

11. In the present case, we have completely reversed our stand on the principle of separation of powers. We have inquired into the motives of the Executive department in making the appointments in question, although it is well settled, under the aforementioned principle, that: .

Generally courts cannot inquire into the motive, policy, wisdom, or expediency of legislation.

The justice, wisdom, policy, necessity, or expediency, of a law which is within its powers are for the legislature, and are not open to inquiry by the courts, except as an aid to proper interpretation.” (16 C.J.S. 471-478) .

If this is true as regards the legislative branch of the government, I can see no valid reason, and none has been pointed out, why the same norm should not govern our relations, with the executive department. However, we have not merely disregarded such norm. We are, also, in effect, restraining the Commission on Appointments — an organ of a coordinate, co-equal branch of the Government — from acting on the questioned appointments. What is more, we are virtually assuming in advance that said body — which has not been organized as yet and whose membership is still undetermined — will not act in harmony with the spirit of our Constitution.

12. It is trite to say that certain moral and political aspects of the issue before us cannot but produce a strong aversion towards the case of petitioner herein and the hundreds of others appointed under the same conditions as he was. Although members of the bench must always endeavor to minimize the influence of emotional factors tending to affect the objectivity essential to a fair and impartial appraisal of the issues submitted for their determination, it is only natural — and, I venture to add, fortunate (for, otherwise, how could they hope to do justice to their fellowmen?) — that they should basically react as other members of the human family. This is probably the reason why Justice Douglas of the Federal Supreme Court of the U.S., said, in Abel v. U.S. (4 Lawyers Edition, 2d, 668, 688) :

“Cases of notorious criminals — like cases of small, miserable ones — are apt to make bad law. When guilt permeates a record, even judges sometimes relax and let the police take shortcuts not sanctioned by constitutional procedures. …. The harm in the given case may seem excusable. But the practices generated by the precedent have far-reaching consequences that are harmful and injurious beyond measurement.”.

Let us hope that no such consequences will flow from the precedent established in this case.

BARRERA, J., dissenting:

The instant case started with a simple petition for prohibition and mandamus with preliminary injunction instituted by petitioner Aytona who claims to have been duly appointed ad interim Governor of the Central Bank, against respondent Castillo who, allegedly accompanied by his correspondent Colonel Gutierrez and a host of heavily armed Philippine Constabulary Rangers, interfered with and prevented the petitioner in the discharge of his duties and prerogatives as such Governor of the Central Bank. During the hearing, however, and immediately thereafter, a great amount of extraneous matter affecting persons not parties to the proceedings has been introduced into the case and a veritable avalanche of memoranda after memoranda and manifestations after manifestations swelled the records and helped involve the issues. One among the dozens who asked to be admitted as amici curiae, even presented an answer in behalf of the people to support the side of the respondents. Unfortunately, in the confusion, the case of the immediate parties became obscured by considerations of circumstances and matters for and with which petitioner and respondents are not directly connected..

In my opinion, the fundamental questions which this Court is called upon to resolve in the present case a specifically: .

(1) Is the ad interim, appointment of petitioner Aytona valid when extended? .

(2) If so, did it automatically lapse with the ending the term of office of the twelve Congressmen composing one-half of the membership of the Commission Appointments? .

(3) May this appointment be legally recalled or withdrawal after Aytona has qualified? .

Before entering into the discussion of the “propriety, morality and wisdom” of the appointment, it is necessary, I believe, that the foregoing legal propositions must first be cleared out.

I. The Validity of Aytona’s Appointment: .

Aytona’s ad interim appointment is assailed on the theory that it was not made during a “recess” of Congress as provided in paragraph 4, section 10 of Article VII of the Constitution. It is claimed for the respondents dents that the word “recess” means “the intermission between sittings of the same body at its regular or adjourned session, and not to the interval between the final adjournment of one body and the convening of another at the next regular session. When applied to a legislative body, it means a temporary dismissal, and not adjournment sine die.” In support of this view, counsel cites the case of Tipton v. Parker, 71Ark. 193, from which the foregoing quotation was taken.

An examination of this case, however, discloses that it did not refer to the power of the President to make ad interim appointments. The pronouncement was made in connection with the interpretation of Section 17, Article 5 of the Constitution of the State ofArkansas. The case involved the validity of the certificate of the auditor with reference to the legality of the expenses of a committee of the State Senate authorized by the latter to make certain investigations beyond the duration of the session of the General Assembly. The court, in declaring the certificate without sanction of law, stated: .

“The Senate has no power by resolution of its own to extend its session, and neither did it have power to such separate resolution to continue its committee, a mere agency of the body, beyond the term of the body itself which created it.” .

in view of the provisions of the aforementioned Section 17, Article 5 of the state Constitution prescribing “that the regular biennial session of the Legislature shall not exceed 60 days, unless by 2/3 vote of the members elected to each house, and section 23 requiring a vote of the majority of each house to enact a law or pass a resolution having the force and effect of a law”. Apparently an opinion of Judge Cooley seemingly to the contrary was cited to refute this view of the court, and so the decision went on to say:

Each house, says Judge Cooley, must also be allowed to proceed in its own way in the collection of such information may seem important to a proper discharge of its functions; and whenever it is deemed desirable that witnesses should be examined, the power and the authority to do so is very properly referred to a committee, with any such powers short of final legislative or judicial action as may seem necessary or expedient in the particular case. Such a committee has no authority to sit during a recess of the house which has appointed it, without its permission to that effect. But the house is at liberty to confer such authority if it sees fit.

It is in this connection and evidently in a desire to explain the opinion of Judge Cooley that the court made the pronouncement relied upon by respondents, thus: .

…. The recess here referred to by Judge Cooley we think should be construed to mean only the intermission between sittings of the same body at its regular or adjourned session, and not to the interval between the final adjournment of one body and the convening of another at the next regular session. When applied to a legislative body, it means a temporary dismissal and not an adjournment sine die.

The conclusion reached by the court can not be otherwise. The case refers to the powers of one house of the state Legislature, with the concurrence of the other, to confer authority upon its own committee to act beyond the duration of the session of the General Assembly. Certainly, Judge Cooley’s view that each house has power to confer authority to its committee to act during a recess must be understood to exist only during the life of the house creating the committee. It can not go beyond its own existence, that is, beyond its adjournment sine die.

But this ruling is no argument that the Executive’s power to make appointments during such adjournment sine die does not exist just because a house of the legislature lacks power to authorize its committee to act during the same adjournment. One refers to the power of a defunct body to act beyond its life; the other refers to the power of another authority, the executive, to perform its functions after the expiration of that other body. Non-existence of the first does not mean non-existence of the other.

It is to be noted that the different counsel advocating the cause of the respondents are not even agreed in the application of their interpretation of the word “recess”. Some of them argue that the interregnum which they contend is not recess, compromises the entire period between the adjournment of the 4th Congress in May, 1961 and the opening of the 1st session of the first session of the 5th Congress on January 22, 1962, so that all ad interim appointments extended during this period are null and void. Others claim that such interregnum is that period between December 13, 1961, date of adjournment of the last session of the 4th Congress, and January 22, 1962. It seems that President Macapagal is of this same view because his administrative Order No. 2 specifically refers to all appointments made after December 13, 1961. Still others, at least one, advanced the theory during the oral argument that the banned period is that between the adjournment of the 4th Congress in May, and December 30, 1961, excluding therefrom the period between this last date and January 22, 1962. Obviously, this theory was advanced in an effort to lend validity to the appointments recently made by President Macapagal, for if the entire period between May or December, 1961 to January 22, 1962 is held not a recess, but an adjournment sine die, then all appointments heretofore made by the present Chief Executive would suffer the same defect as those extended by former President Garcia. This last argument is unavailing because it, likewise, is untenable, tested upon the same authority cited by counsel, i.e., that the term “recess” means “the intermission between sittings of the same body.” Since the 5th Congress has not as yet even convened, the period between December 30 and January 22 can not be a recess of the 5th Congress because it, definitely, is not an intermission between sittings of the same body.

In the circumstances, it seems it is an over-statement to say that the term “recess has a definite legal meaning in the sense attributed to it in the Tipton vs. Parker case. The confusion in the minds of the several counsels for the respondents as to the application of the alleged meaning of the term, indicates a belabored effort on their part to impute a meaning to satisfy their case. Upon the other hand, we find in “Hinds Precedents of the House of Representatives” (Vol. 5, pp. 852-853), a legislative interpretation by the United States Senate made during the discussion of the term “recess of the Senate” in connection with the President’s¹ power to make appointments, as follows: .

The word ‘recess’ is one of ordinary, not technical, signification, and it is evidently used in the constitutional provision in its common and popular sense. It means in Article II, above referred to, precisely what it means in Article III, in which it is again used. Conferring power upon the executive of a State to make temporary appointment of a Senator, it says: .

And if vacancies happen, by resignation or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.’ .

It means just what was meant by it in the Article of Confederation, in which it is found in the following provision”: .

TheUnited Statesin Congress assembled shall have authority to appoint a committee to sit in the recess of Congress, it be denominated a committee of the States, and to consist of one delegate from each State.’ .

It was evidently intended by the framers of the Constitution that it should mean something real, not something imaginary; something actual, not something fictitious. They used the word as the mass of mankind then understood it and now understand it. It means, in our judgment, in this connection the period of time when the Senate is not sitting in regular or extraordinary session as a branch of the Congress, or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it cannot receive communications from the President or participate as body in making appointments.” .

The Attorney General of theUnited Stateswas also of this view when he stated: .

The recess of the Senate during which the President shall have power to fill a vacancy that may happen, means the period after the final adjournment of Congress for the session and before the next session begins; while an adjournment during a session of Congress means a merely temporary suspension of business from day to day, or for such brief periods of time as are agreed upon by the joint action of the two houses. The President is not authorized to appoint an officer during the current holiday adjournment of the Senate, which will have the effect of an appointment made in the recess occurring between two sessions of the Senate.” (President – Appointment Officers -HolidayRecess, 1901, 23 Op. Atty. Gen. 599, (U.S.C.A. Const. Art. 2, Sec. 2[2]..

It is worthwhile to note that our Constitution in paragraph 4, Section 10 of Article VII speaks of “recess” without making any distribution between the sessions one congress and the sessions of another. And it is trite to say that when the law makes no distinction, no distinction should be made, especially if to do so would result in a strained interpretation thereof and defeat the evident purpose of the framers of the Constitution – in this instance, to render it certain that at times there should be, whether the Congress is in session or not, an officer for every office, entitled to discharge the duties thereof. (5 Hinds, op. cit., p. 853.) .

II. Lapsing of Aytona’s Appointment: .

It is contended for the respondents that since 12 members of the Commission on Appointments ceased to be such upon the expiration of their term of office at midnight of December 29, 1961, the Commission on Appointments likewise ceased to exist on the theory that creation can not exist beyond the life of its creator at least with respect to one-half of its members. This seems to stem from the wrong notion that the Commission on Appointments is a creature of the Congress. This confuses the Commission on Appointments as a constitutional body with its members. The body continued to exist, but only its membership changes periodically. When the Constitution provides in Section 13 of Article 6 thereof that “the Electoral Tribunals and the Commission on Appointments shall be constituted within 30 days after the Senate and the House of Representatives shall have been organized with the election of their President and Speaker, respectively”, it did not mean that the Senate and the House of Representatives thereby create said bodies, no more than the President can be said to create the Supreme Court by appointing the Justices therein. It simply ordained that the Commission be constituted or organized by electing the members thereof, whose positions have already been created in virtue of Section 12 of the same Constitution. To hold the Electoral Tribunals and the Commission on Appointments are non-existing during the period from December 30, 1961 to January 22, 1962 (and during the corresponding period every four years thereafter) will result in an absurdity and a situation destructive of the normal processes provided in the Constitution. One of such absurd results would be that no electoral protest against any elected and proclaimed congressman or senator can be legally filed with the Electoral Tribunals within the period prescribe by their rules, that is, within fifteen days following the proclamation of the results of the election, which period falls within the time when the Electoral Tribunals (as is the case of Commission on Appointments) are allegedly non-existent.

The proceedings in the Constitutional Convention are cited to support the theory that the Commission on Appointments is not a permanent commission. A review of the records, however, of that convention reveals that what was intended in the proposed draft was to authorize the Commission on Appointments to hold sessions even when the Congress is not in session. The mere fact that such a proposal was defeated and, consequently, the word “permanent” was not adopted in the final text, does not import that the Constitution meant to give an off and on existence to the Commission on Appointments lapsing every four years when the twelve of its members cease to be such. On the contrary, it seems more logical to hold that the legal existence of the Commission as well as the Electoral Tribunals continue irrespective of the vacancies that may exist in the membership thereof. It is for this reason that the personnel of these bodies do not cease periodically, but continue to perform their duties in their respective offices for which they are legally paid their salaries by the government. It seems clear, therefore, that the Commission on Appointments did not lapse on December 29, 1961. Neither did the appointment of Aytona lapse on that date because the same could not be acted upon by the Commission on Appointments during the recess of the Congress.

III. May the appointment of Aytona be legally recalled or withdrawn after he has qualified for the position to which he was appointed? .

Precedents are to the effect that when once an appointment has been extended by the Chief Executive who, as is provided in our Constitution, has the sole power of appointment subject only to the consent of the Commission on Appointments, and the appointee has accepted the appointment, the same becomes complete and the appointing power can not withdraw it except in cases where the tenure of the appointee is at the Chief Executive’s pleasure or upon grounds justifying removal and after due process. This is not because the appointment constitutes a contract (for truly a public office can not be subject of any contract), but because of the provisions of the Constitution itself to the effect that “no officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law.” If, therefore, the recall or the withdrawal of the appointment of Aytona was not authorized by law, then his assumption of the functions of his office on January 2, 1962 was clearly within his legal right and the interference of Castillo, aggravated by the assistance or at least the presence of members of the Armed Forces, was clearly unlawful.

The foregoing disposes, in my opinion, the legal issue and the rights of the parties in the present case. But against these, to me, clear mandates of the Constitution and the legal and judicial precedents, respondents have appealed to this Court for it to exercise “judicial statesmanship” invoking the spirit of the Constitution. It is claimed that there was a manifest abuse of power by the outgoing President in extending, on the eve of the expiration of his term, some three hundred and fifty ad interim appointments to fill an equal number of vacancies in the different branches of the government; that no proper consideration was given of the merits of the appointees, it appearing that in the case of at least some of the appointees to the judiciary, their assurance of an immediate assumption of office or the taking of oath was made a condition precedent to the appointments, and that there was a wild scramble in Malacañan among the appointees on the night of December 29. We are scandalized by this and expect the Court to apply the remedy. What of the proceedings in Congress during the last day of session when bills after bills are passed in a manner not too dissimilar to the described scene in Malacañan? Can the Supreme Court be expected to correct this too by declaring all such laws as invalid just as we are asked to invalidate these appointments? .

Be this as it may, whatever may be our personal views on this matter, I agree with Mr. Justice Concepcion that not all wrongs or even abuse of power can be corrected by the exercise of the high prerogatives of the Supreme Court vested in it by the Constitution. As I take it, the higher and more delicate is the prerogative, the greater should be the degree of self-restraint in the exercise thereof, lest the fine and tested scale of checks and balances set up by the Constitution be jarred. In the same manner that we expect circumspection and care, even double care, on the part of the other two co-equal coordinate departments of the government, so must we be most cautious and slow in judging the morality, propriety and good faith involved in the actuations of the other departments in matters coming within their competence. The remedy, I believe, under the circumstances is with the Commission on Appointments to which the appointments have been submitted. The more fact that it is expected that the Commission on Appointments would be controlled by the party of the outgoing President is immaterial, because legal processes can not be made to depend upon the fortunes of political parties, for there is still the ultimate remedy by the people in all authority. At any rate, as has already been aptly said: the judiciary is not the repository of remedies for all political or social evils, and that the judicial department has no power to revise even arbitrary or unfair action of the other departments taken in pursuance of the power committed exclusively to those departments by the Constitution..

May I add: all the scandalous circumstances brought to the attention of this Court did not link the petitioner herein, save for the fact that this appointment was extended on the same day as those issued under the unusual and irregular circumstances attending the other appointments. If at all, there is evidence in favor of Aytona to the effect that insofar as he is concerned, his appointment to the position of Governor of the Central Bank has been under consideration for a long time and that he is qualified for the position. It can not, therefore be said that with respect to him there was no mature deliberation and due consideration of his qualifications and of the need of the service. he charge was made that the position of Governor of the Central Bank has been vacant for several months and that the President should have filled it earlier. Yet, when the President actually filled it as he did, he is criticized claiming that there was no immediate need for such action in view of the fact that there was an Acting Governor. That it was really necessary to fill the position is evidenced by the act of President Macapagal himself in making his own appointment hardly twenty-four hours after he recalled the appointment of Aytona.

Summarizing, I would say that all the circumstances cited by the respondents that have surrounded the issuance of the appointments in question, have to do with the mode or manner of the exercise of the authority to make the appointment, quite apart from the existence of the authority itself. The observance of good faith, morality and propriety by the other two co-equal coordinate departments in the performance of their functions must be secured by their sense of duty and official oath hand not by any supervisory power of the courts..

The role of courts in our scheme of government is to interpret the law and render justice under it. This simply means that whatever may be our own personal feelings as to the propriety, morality, or wisdom of any official act or actuation of a public officer or any agency of the government within their respective competence brought to the attention of the Court for adjudication, they should not be permitted to prevail over clear legal considerations, for ours is a regime under the Rule of Law..

In view of the foregoing, I am constrained to register my dissent.

Footnotes

BENGZON, C.J.:

¹These positions had been vacant for months.

²The 4th Congress expired at midnight December 29, 1961..

³89 A.L.R., 135 Anno.

PADILLA, J., concurring:

¹Section 3, Article VI.

²Section 6, Article VI.

³Section 9, Article VI.

⁴Section 4, Article VII.

BARRERA, J., dissenting:

¹The power of the U.S. President to make appointments is by and with the advice and consent of the Senate..

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ARTURO M. DE CASTRO ET AL. VS. JUDICIAL AND BAR COUNCIL ET AL ET AL., (G.R NO. 191002 ET AL., 17 MARCH 2010, BERSAMIN, J.)

 

 

Republic of thePhilippines

Supreme Court

Manila

                                                              

EN BANC

 

ARTURO M. DE CASTRO,                               Petitioner,                            – versus –   JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL – ARROYO,                     Respondents. x – – – – – – – – – – – – – – – – – – – – – – – x JAIME N. SORIANO,                                 Petitioner,                              – versus –   JUDICIAL AND BAR COUNCIL (JBC),                     Respondent. x – – – – – – – – – – – – – – – – – – – – – – – x PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),                                 Petitioner,                             – versus –    JUDICIAL AND BAR COUNCIL (JBC),                                 Respondent. x – – – – – – – – – – – – – – – – – – – – – – – x IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY, ESTELITO P. MENDOZA,                                 Petitioner,           x – – – – – – – – – – – – – – – – – – – – – – – x JOHN G. PERALTA,                                 Petitioner,                             – versus – JUDICIAL AND BAR COUNCIL (JBC).                                 Respondent. x – – – – – – – – – – – – – – – – – – – – – – – -x PETER IRVING CORVERA;   CHRISTIAN ROBERT S. LIM;   ALFONSO V. TAN, JR.;   NATIONAL UNION OF PEOPLE’S LAWYERS;   MARLOU B. UBANO;   INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its Immediate Past President, ATTY. ISRAELITO P. TORREON, and the latter in his own personal capacity as a MEMBER of the PHILIPPINE BAR;   MITCHELL JOHN L. BOISER;   BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES, JR.; CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT OF GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE; KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN NG SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP) CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA;   WALDEN F. BELLO and LORETTA ANN P. ROSALES;   WOMEN TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by YOLANDA QUISUMBING- JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON.                             Intervenors. x – – – – – – – – – – – – – – – – – – – – – – – -x ATTY. AMADOR  Z. TOLENTINO, JR., (IBP Governor–Southern Luzon), and ATTY. ROLAND B. INTING (IBP Governor–Eastern Visayas),                                 Petitioners,                    – versus – JUDICIAL AND BAR COUNCIL (JBC),                                  Respondent. x – – – – – – – – – – – – – – – – – – – – – – – x PHILIPPINE BAR ASSOCIATION, INC.,                                  Petitioner,                      – versus –                    JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO,                                 Respondents.

G. R. No. 191002                 G.R. No. 191032                 G.R. No. 191057                 A.M. No. 10-2-5-SC                      G.R. No. 191149                                                                                                                                           G.R. No. 191342 G.R. No. 191420    Present: PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ. Promulgated: March 17, 2010

x—————————————————————————————–x

 

D E C I S I O N

 

BERSAMIN, J.:

 

          The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010occurs just days after the coming presidential elections on May 10, 2010. Even before the event actually happens, it is giving rise to many legal dilemmas. May the incumbent President appoint his successor, considering that Section 15, Article VII (Executive Department) of the Constitution prohibits the President or Acting President from making appointments within two months immediately before the next presidential elections and up to the end of his term, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety? What is the relevance of Section 4 (1), Article VIII (Judicial Department) of the Constitution, which provides that any vacancy in the Supreme Court shall be filled within 90 days from the occurrence thereof, to the matter of the appointment of his successor? May the Judicial and Bar Council (JBC) resume the process of screening the candidates nominated or being considered to succeed Chief Justice Puno, and submit the list of nominees to the incumbent President even during the period of the prohibition under Section 15, Article VII? Does mandamus lie to compel the submission of the shortlist of nominees by the JBC?

Precís of the Consolidated Cases

 

Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R. No. 191002^[1][1] and G.R. No. 191149^[2][2] as special civil actions for certiorari and mandamus, praying that the JBC be compelled to submit to the incumbent President the list of at least three nominees for the position of the next Chief Justice.

In G.R. No. 191032,^[3][3] Jaime N. Soriano, via his petition for prohibition, proposes to prevent the JBC from conducting its search, selection and nomination proceedings for the position of Chief Justice.

In G.R. No. 191057, a special civil action for mandamus,^[4][4]  the Philippine Constitution Association (PHILCONSA) wants the JBC to submit its list of nominees for the position of Chief Justice to be vacated by Chief Justice Puno upon his retirement on May 17, 2010, because the incumbent President is not covered by the prohibition that applies only to appointments in the Executive Department.    

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

          In G.R. No. 191342,^[6][6] which the Court consolidated on March 9, 2010 with the petitions earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated Bar of the Philippines (IBP) Governors for Southern Luzon and Eastern Visayas, respectively, want to enjoin and restrain the JBC from submitting a list of nominees for the position of Chief Justice to the President for appointment during the period provided for in Section 15, Article VII.

          All the petitions now before the Court pose as the principal legal question whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement. That question is undoubtedly impressed with transcendental importance to the Nation, because the appointment of the Chief Justice is any President’s most important appointment.

A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively (Valenzuela),^[7][7] by which the Court held that Section 15, Article VII prohibited the exercise by the President of the power to appoint to judicial positions during the period therein fixed.

In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue expressed by legal luminaries – one side holds that the incumbent President is prohibited from making appointments within two months immediately before the coming presidential elections and until the end of her term of office as President on June 30, 2010, while the other insists that the prohibition applies only to appointments to executive positions that may influence the election and, anyway, paramount national interest justifies the appointment of a Chief Justice during the election ban – has impelled the JBC to defer the decision to whom to send its list of at least three nominees, whether to the incumbent President or to her successor.^[8][8] He opines that the JBC is thereby arrogating unto itself “the judicial function that is not conferred upon it by the Constitution,” which has limited it to the task of recommending appointees to the Judiciary, but has not empowered it to “finally resolve constitutional questions, which is the power vested only in the Supreme Court under the Constitution.” As such, he contends that the JBC acted with grave abuse of discretion in deferring the submission of the list of nominees to the President; and that a “final and definitive resolution of the constitutional questions raised above would diffuse (sic) the tension in the legal community that would go a long way to keep and maintain stability in the judiciary and the political system.”^[9][9]

In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse of discretion amounting to lack or excess of its jurisdiction when it resolved unanimously on January 18, 2010 to open the search, nomination, and selection process for the position of Chief Justice to succeed Chief Justice Puno, because the appointing authority for the position of Chief Justice is the Supreme Court itself, the President’s authority being limited to the appointment of the Members of the Supreme Court. Hence, the JBC should not intervene in the process, unless a nominee is not yet a Member of the Supreme Court.^[10][10]

For its part, PHILCONSA observes in its petition in G.R. No. 191057 that “unorthodox and exceptional circumstances spawned by the discordant interpretations, due perhaps to a perfunctory understanding, of Sec. 15, Art. VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII of the Constitution” have bred “a frenzied inflammatory legal debate on the constitutional provisions mentioned that has divided the bench and the bar and the general public as well, because of its dimensional impact to the nation and the people,” thereby fashioning “transcendental questions or issues affecting the JBC’s proper exercise of its “principal function of recommending appointees to the Judiciary” by submitting only to the President (not to the next President) “a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy” from which the members of the Supreme Court and judges of the lower courts may be appointed.”^[11][11] PHILCONSA further believes and submits that now is the time to revisit and review Valenzuela, the “strange and exotic Decision of the Court en banc.”^[12][12]

Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC “to immediately transmit to the President, within a reasonable time, its nomination list for the position of chief justice upon the mandatory retirement of Chief Justice Reynato S. Puno, in compliance with its mandated duty under the Constitution” in the event that the Court resolves that the President can appoint a Chief Justice even during the election ban under Section 15, Article VII of the Constitution.^[13][13]

The petitioners in G.R. No. 191342 insist that there is an actual controversy, considering that the “JBC has initiated the process of receiving applications for the position of Chief Justice and has in fact begun the evaluation process for the applications to the position,” and “is perilously near completing the nomination process and coming up with a list of nominees for submission to the President, entering into the period of the ban on midnight appointments on March 10, 2010,” which “only highlights the pressing and compelling need for a writ of prohibition to enjoin such alleged ministerial function of submitting the list, especially if it will be cone within the period of the ban on midnight appointments.”^[14][14]

Antecedents

 

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

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

 

In its January 18, 2010meeting en banc, therefore, the JBC passed a resolution,^[15][15] which reads:

 

The JBC, in its en banc meeting ofJanuary 18, 2010, unanimously agreed to start the process of filling up the position of Chief Justice to be vacated onMay 17, 2010 upon the retirement of the incumbent Chief Justice Honorable Reynato S. Puno.

It will publish the opening of the position for applications or recommendations; deliberate on the list of candidates; publish the names of candidates; accept comments on or opposition to the applications; conduct public interviews of candidates; and prepare the shortlist of candidates.

As to the time to submit this shortlist to the proper appointing authority, in the light of the Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all views on the matter.

18 January 2010.

                                                                     (sgd.)

                                                MA. LUISA D. VILLARAMA

                                                Clerk of Court &

                                                Ex-Officio Secretary

                                                Judicial and Bar Council

          As a result, the JBC opened the position of Chief Justice for application or recommendation, and published for that purpose its announcement dated January 20, 2010,^[16][16] viz:

The Judicial and Bar Council (JBC) announces the opening for application or recommendation, of the position of CHIEF JUSTICE OF THE SUPREME COURT, which will be vacated on17 May 2010upon the retirement of the incumbent Chief Justice, HON. REYNATO S. PUNO.

Applications or recommendations for this position must be submitted not later than4 February 2010(Thursday) to the JBC Secretariat xxx:

The announcement was published on January 20, 2010 in the Philippine Daily Inquirer and The Philippine Star.^[17][17]

          Conformably with its existing practice, the JBC “automatically considered” for the position of Chief Justice the five most senior of the Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the last two declined their nomination through letters dated January 18, 2010and January 25, 2010, respectively.^[18][18]

          Others either applied or were nominated. Victor Fernandez, the retired Deputy Ombudsman for Luzon, applied, but later formally withdrew his name from consideration through his letter dated February 8, 2010. Candidates who accepted their nominations without conditions were Associate Justice Renato C. Corona; Associate Justice Teresita J. Leonardo-De Castro; Associate Justice Arturo D. Brion; and Associate Justice Edilberto G. Sandoval (Sandiganbayan). Candidates who accepted their nominations with conditions were Associate Justice Antonio T. Carpio and Associate Justice Conchita Carpio Morales.^[19][19]  Declining their nominations were Atty. Henry Villarica (via telephone conversation with the Executive Officer of the JBC on February 5, 2010) and Atty. Gregorio M. Batiller, Jr. (via telephone conversation with the Executive Officer of the JBC on February 8, 2010).^[20][20]

          The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to meet the standards set by the JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the Office of the Ombudsman (due to cases pending in the Office of the Ombudsman).^[21][21]

          In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the following candidates to invite the public to file their sworn complaint, written report, or opposition, if any, not later than February 22, 2010, to wit: Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales, Associate Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice Sandoval. The announcement came out in the Philippine Daily Inquirer and The Philippine Star issues of February 13, 2010.^[22][22]

Issues

 

Although it has already begun the process for the filling of the position of Chief Justice Puno in accordance with its rules, the JBC is not yet decided on when to submit to the President its list of nominees for the position due to the controversy now before us being yet unresolved. In the meanwhile, time is marching in quick step towardsMay 17, 2010when the vacancy occurs upon the retirement of Chief Justice Puno.

 

The actions of the JBC have sparked a vigorous debate not only among legal luminaries, but also among non-legal quarters, and brought out highly disparate opinions on whether the incumbent President can appoint the next Chief Justice or not. Petitioner Mendoza notes that in Valenzuela, which involved the appointments of two judges of the Regional Trial Court, the Court addressed this issue now before us as an administrative matter “to avoid any possible polemics concerning the matter,” but he opines that the polemics leading to Valenzuela “would be miniscule [sic] compared to the “polemics” that have now erupted in regard to the current controversy,” and that unless “put to a halt, and this may only be achieved by a ruling from the Court, the integrity of the process and the credibility of whoever is appointed to the position of Chief Justice, may irreparably be impaired.”^[23][23]

          Accordingly, we reframe the issues as submitted by each petitioner in the order of the chronological filing of their petitions.

 

 

 

G.R. No. 191002

 

a.   Does the JBC have the power and authority to resolve the constitutional question of whether the incumbent President can appoint a Chief Justice during the election ban period?

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

 

G.R. No. 191032

 

a.  Is the power to appoint the Chief Justice vested in the Supreme Court en banc?

G.R. No. 191057

 

a.   Is the constitutional prohibition against appointment under Section 15, Article VII of the Constitution applicable only to positions in the Executive Department?

b.  Assuming that the prohibition under Section 15, Article VII of the Constitution also applies to members of the Judiciary, may such appointments be excepted because they are impressed with public interest or are demanded by the exigencies of public service, thereby justifying these appointments during the period of prohibition?

c. Does the JBC have the authority to decide whether or not to include and submit the names of nominees who manifested interest to be nominated for the position of Chief Justice on the understanding that his/her nomination will be submitted to the next President in view of the prohibition against presidential appointments from March 11, 2010 until 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 9, Article VIII of the Constitution?

b. May President Gloria Macapagal-Arroyo make appointments to the Judiciary after March 10, 2010, including that for the position of Chief Justice after Chief Justice Puno retires on May 17, 2010?

 

G.R. No. 191149

 

a.  Does the JBC have the discretion to withhold the submission of the short list to President Gloria Macapagal-Arroyo?

 

G.R. No. 191342

 

a.     Does the JBC have the authority to submit the list of nominees to the incumbent President without committing a grave violation of the Constitution and jurisprudence prohibiting the incumbent President from makingmidnightappointments two months immediately preceding the next presidential elections until the end of her term?

b.     Is any act performed by the JBC, including the vetting of the candidates for the position of Chief Justice, constitutionally invalid in view of the JBC’s illegal composition allowing each member from the Senate and the House of Representatives to have one vote each?

OnFebruary 16, 2010, the Court directed the JBC and the Office of the Solicitor General (OSG) to comment on the consolidated petitions, except that filed in G.R. No. 191342.

On February 26, 2010, the JBC submitted its comment, reporting therein that the next stage of the process for the selection of the nominees for the position of Chief Justice would be the public interview of the candidates and the preparation of the short list of candidates, “including the interview of the constitutional experts, as may be needed.”^[24][24] It stated:^[25][25]

 

 

Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper appointing authority, in light of Section 4 (1), Article VIII of the Constitution, which provides that vacancy in the Supreme Court shall be filled within ninety (90) days from the occurrence thereof, Section 15, Article VII of the Constitution concerning the ban on Presidential appointments “two (2) months immediately before the next presidential elections and up to the end of his term” and Section 261 (g), Article XXII of the Omnibus Election Code of the Philippines.

12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the JBC will be guided by its decision in these consolidated Petitions and Administrative Matter.

OnFebruary 26, 2010, the OSG also submitted its comment, essentially stating that the incumbent President can appoint the successor of Chief Justice Puno upon his retirement byMay 17, 2010.

The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from performing its principal function under the Constitution to recommend appointees in the Judiciary; (b) the JBC’s function to recommend is a “continuing process,” which does not begin with each vacancy or end with each nomination, because the goal is “to submit the list of nominees to Malacañang on the very day the vacancy arises”;^[26][26] the JBC was thus acting within its jurisdiction when it commenced and set in motion the process of selecting the nominees to be submitted to the President for the position of Chief Justice to be vacated by Chief Justice Puno;^[27][27] (c) petitioner Soriano’s theory that it is the Supreme Court, not the President, who has the power to appoint the Chief Justice, 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, to the exclusion of the Chief Justice; ^[28][28] (d) a writ of mandamus can issue to compel the JBC to submit the list of nominees to the President, 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; as such, the JBC, the nature of whose principal function is executive, is not vested with the power to resolve who has the authority to appoint the next Chief Justice and, therefore, has no discretion to withhold the list from the President; ^[29][29] and (e) a writ of mandamus cannot issue to compel the 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.^[30][30]

The OSG contends that the incumbent President may appoint the next Chief Justice, because the prohibition under Section 15, Article VII of the Constitution does not apply to appointments in the Supreme Court. It argues that any vacancy in the Supreme Court must be filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the Constitution; ^[31][31] that in their deliberations on the mandatory period for the appointment of Supreme Court Justices, the framers neither mentioned nor referred to the ban against midnight appointments, or its effects on such period, or vice versa;^[32][32] that had the framers intended the prohibition to apply to Supreme Court appointments, they could have easily expressly stated so in the Constitution, which explains why the prohibition found in Article VII (Executive Department) was not written in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII ample restrictions or limitations on the President’s power to appoint members of the Supreme Court to ensure its independence from “political vicissitudes” and its “insulation from political pressures,”^[33][33] such as stringent qualifications for the positions, the establishment of the JBC, the specified period within which the President shall appoint a Supreme Court Justice.

The OSG posits that although Valenzuela involved the appointment of RTC Judges, the situation now refers to the appointment of the next Chief Justice to which the prohibition does not apply; that, at any rate, Valenzuela even recognized that there might be “the imperative need for an appointment during the period of the ban,” like when the membership of the Supreme Court should be “so reduced that it will have no quorum, or should the voting on a particular important question requiring expeditious resolution be divided”;^[34][34] and that Valenzuela also recognized that the filling of vacancies in the Judiciary is undoubtedly in the public interest, most especially if there is any compelling reason to justify the making of the appointments during the period of the prohibition.^[35][35]

Lastly, the OSG urges that there are now undeniably compelling reasons for the incumbent President to appoint the next Chief Justice, to wit: (a) a deluge of cases involving sensitive political issues is “quite expected”;^[36][36] (b) the Court acts as the Presidential 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 correct manifest errors on the statement of votes (SOV) and certificates of canvass (COC)”;^[37][37] (c) if history has shown that during ordinary times the Chief Justice 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 Chief Justice immediately upon the retirement of Chief Justice Puno;^[38][38] and (d) should the next Chief Justice come from among the incumbent Associate Justices of the Supreme Court, thereby causing a vacancy, it also becomes incumbent upon the JBC to start the selection process for the filling up of the vacancy in accordance with the constitutional mandate.^[39][39]

OnMarch 9, 2010, the Court admitted the following comments/oppositions-in-intervention, to wit:

(a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving Corvera (Corvera);^[40][40]

(b) The opposition-in-intervention datedFebruary 22, 2010 of Atty. Christian Robert S. Lim (Lim);

(c) The opposition-in-intervention datedFebruary 23, 2010 of Atty. Alfonso V. Tan, Jr. (Tan);

(d) The comment/opposition-in-intervention datedMarch 1, 2010 of the National Union of People’s Lawyers (NUPL);

(e) The opposition-in-intervention datedFebruary 25, 2010of Atty. Marlou B. Ubano (Ubano);

(f) The opposition-in-intervention datedFebruary 25, 2010 of Integrated Bar of the Philippines-Davao del Sur Chapter and its Immediate Past President, Atty. Israelito P. Torreon (IBP- Davao del Sur);

(g) The opposition-in-intervention datedFebruary 26, 2010 of Atty. Mitchell John L. Boiser (Boiser);

(h)The consolidated comment/opposition-in-intervention dated February 26, 2010 of BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary General Renato M. Reyes, Jr.; Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY) Secretary General Gloria Arellano; Alyansa ng Nagkakaisang Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo ang Pag-asa Convenor Alvin Peters; League of Filipino Students (LFS) Chairman James Mark Terry Lacuanan Ridon; National Union of Students of the Philippines (NUSP) Chairman Einstein Recedes, College Editors Guild of the Philippines (CEGP) Chairman Vijae Alquisola; and Student Christian Movement of the Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et al.);

(i)    The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and Loretta Ann P. Rosales (Bello et al.); and

(j) The consolidated comment/opposition-in-intervention dated March 4, 2010 of the Women Trial Lawyers Organization of the Philippines (WTLOP), represented by Atty. Yolanda Quisumbing-Javellana; Atty. Belleza Alojado Demaisip; Atty. Teresita Gandionco-Oledan; Atty. Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta. Romana; Atty. Leonila de Jesus; and Atty. Guinevere de Leon (WTLOP).

 

          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 outgoing President is constitutionally banned from making any appointments from March 10, 2010 until June 30, 2010, including the appointment of the successor of Chief Justice Puno. Hence, mandamus does not lie to compel the JBC to submit the list of nominees to the outgoing President if the constitutional prohibition is already in effect. Tan adds that the prohibition against midnight appointments was applied by the Court to the appointments to the Judiciary made by then President Ramos, with the Court holding that the duty of the President to fill the vacancies within 90 days 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.

Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose the insistence that Valenzuela recognizes the possibility that the President may appoint the next Chief Justice if exigent circumstances warrant the appointment, because that recognition is obiter dictum; and aver that the absence of a Chief Justice or even an Associate Justice does not cause epic damage 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 to sit and adjudge en banc or in divisions of three, five or seven members at its discretion; that a full membership of the Court is not necessary; that petitioner De Castro’s fears are unfounded and baseless, being based on a mere possibility, the occurrence of which is entirely unsure; that it is not in the national interest to have a Chief Justice whose appointment is unconstitutional and, therefore, void; and that such a situation will create a crisis in the judicial system and will worsen an already vulnerable political situation.

ice is imperative for the stability of the judicial system and the political situation in the country when the election-related questions reach the Court as false, because there is an existing law on filling 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; that a temporary or an acting Chief Justice is not anathema to judicial independence; that the designation of an acting Chief Justice is not only provided for by law, but is also dictated by practical necessity; that the practice was intended to be enshrined in the 1987 Constitution, but the Commissioners decided not to write it in the Constitution on account of the settled practice; that the practice was followed under the 1987 Constitution, when, in 1992, at the end of the term of Chief Justice Marcelo B. Fernan, Associate Justice Andres Narvasa assumed the position as Acting Chief Justice prior to his official appointment as Chief Justice; that said filling up of a vacancy in the office of the Chief Justice was acknowledged and even used by analogy in the case of the vacancy of the Chairman of the Commission on Elections, per Brillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme Court has shown that this rule of succession has been repeatedly observed and has become a part of its tradition.

Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus Election Code penalizes as an election offense the act of any government official who appoints, promotes, or gives any increase in salary or remuneration or privilege to any government official or employee during the period of 45 days before a regular election; that the provision covers all appointing heads, officials, and officers of a government office, agency or instrumentality, including the President; that for the incumbent President to appoint the next Chief Justice upon the retirement of Chief Justice Puno, or during the period of the ban under the Omnibus Election Code, constitutes an election offense; that even an appointment of the next Chief Justice prior to the election ban is fundamentally invalid 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.         

Intervenor Boiser adds that De Castro’s prayer to compel the submission of nominees by the JBC to the incumbent President is off-tangent because the position of Chief Justice is still not vacant; that to speak of a list, much more a submission of such list, before a vacancy occurs is glaringly premature; that the proposed advance appointment by the incumbent President of the next Chief Justice will be unconstitutional; and that no list of nominees can be submitted by the JBC if there is no vacancy.

          All the intervenors-oppositors submit that Section 15, Article VII makes no distinction between the kinds of appointments made by the President; and that the Court, in Valenzuela, ruled that the appointments by the President of the two judges during the prohibition period were void.

Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not apply only to the appointments in the 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 as applicable to judicial appointments.

Intervenor WTLOP further posits that petitioner Soriano’s contention that the power to appoint the Chief Justice is vested, not in the President, but in the Supreme Court, is utterly baseless, because the Chief Justice is also a Member of the Supreme Court as contemplated under Section 9, Article VIII; and that, at any rate, the term “members” was interpreted in Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to the Chief Justice and the Associate Justices of the Supreme Court; that PHILCONSA’s prayer that the Court pass a resolution declaring that persons who manifest their interest as nominees, but with conditions, shall not be considered nominees by the JBC is diametrically opposed to the arguments in the body of its petition; that such glaring inconsistency between the allegations in the body and the relief prayed for highlights the lack of merit of PHILCONSA’s petition; that the role of the JBC cannot be separated from the constitutional prohibition on the President; and that the Court must direct the JBC to follow the rule of law, that is, to submit the list of nominees only to the next duly elected President after the period of the constitutional ban against midnight appointments has expired.

Oppositor IBP Davao del Sur opines that the JBC – because it is neither a judicial nor a quasi-judicial body – has no duty under the Constitution to resolve the question of whether the incumbent President can appoint a Chief Justice during the period of prohibition; that even if the JBC has already come up with a short list, it still has to bow to the strict limitations under Section 15, Article VII; that should the JBC defer submission of the list, it is not arrogating unto itself a judicial function, but simply respecting the clear mandate of the Constitution; and that the application of the general rule in Section 15, Article VII to the Judiciary does not violate the principle of separation of powers, because said provision is an exception.

Oppositors NUPL, Corvera, Lim and BAYAN et al.  state that the JBC’s act of nominating appointees to the Supreme Court is purely ministerial and does not involve the exercise of judgment; that there can be no default on the part of the JBC in submitting the list of nominees to the President, considering that the call for applications only begins from the occurrence of the vacancy in the Supreme Court; and that the commencement of the process of screening of applicants to fill the vacancy in the office of the Chief Justice only begins from the retirement on May 17, 2010, for, prior to this date, there is no definite legal basis for any party to claim that the submission or non-submission of the list of nominees to the President by the JBC is a matter of right under law.

The main question presented in all the filings herein – because it involves two seemingly conflicting provisions of the Constitution – imperatively demands the attention and resolution of this Court, the only authority that can resolve the question definitively and finally. The imperative demand rests on the ever-present need, first, to safeguard the independence, reputation, and integrity of the entire 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 outgoing President’s power to appoint to the Judiciary within the long period starting two months before the presidential elections 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 of screening and nominating qualified persons for appointment to the Judiciary.

Thus, we resolve.

 

Ruling of the Court

 

Locus Standi of Petitioners

 

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

Black defines locus standi as “a right of appearance in a court of justice on a given question.”^[41][41] In public or constitutional litigations, the Court is often burdened with the determination of the locus standi of the petitioners due to the ever-present need to regulate the invocation of the intervention of the Court to correct any official action or policy in order to avoid obstructing the efficient functioning of public officials and offices involved in public service. It is required, therefore, that the petitioner must have a personal stake in the outcome of the controversy, for, as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:^[42][42]

The question on legal standing is whether such parties have “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.”^[43][43] Accordingly, it has been held that the interest of a person assailing the constitutionality of a statute must be direct and personal. He must 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 sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.^[44][44]

It is true that as early as in 1937, in People v. Vera,^[45][45] the Court adopted the direct injury test for determining whether a petitioner in a public action had locus standi. There, the Court held that the person who would assail the validity of a statute must have “a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result.” Vera was followed in Custodio v. President of the Senate,^[46][46] Manila Race Horse Trainers’ Association v. De la Fuente,^[47][47] Anti-Chinese League of the Philippines v. Felix,^[48][48] and Pascual v. Secretary of Public Works.^[49][49]

 

Yet, the Court has also held that the requirement of locus standi, being a mere procedural technicality, can be waived by the Court in the exercise of its discretion. For instance, in 1949, in Araneta v. Dinglasan,^[50][50] the Court liberalized the approach when the cases had “transcendental importance.” Some notable controversies whose petitioners did not pass the direct injury test were allowed to be treated in the same way as in Araneta v. Dinglasan.^[51][51] 

In the 1975 decision in Aquino v. Commission on Elections,^[52][52] this Court decided to resolve the issues raised by the petition due to their “far-reaching implications,” even if the petitioner had no personality to file the suit. The liberal approach of Aquino v. Commission on Elections has been adopted in several  notable  cases,  permitting  ordinary  citizens,  legislators,  and  civic

organizations to bring their suits involving the constitutionality or validity of laws, regulations, and rulings.^[53][53]

However, the assertion of a public right as a predicate for challenging a supposedly illegal or unconstitutional executive or legislative action rests on the theory that the petitioner represents the public in general. Although such petitioner may not be as adversely affected by the action complained against as are others, it is enough that he sufficiently demonstrates in his petition that he is entitled to protection or relief from the Court in the vindication of a public right.

Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus standi. That is not surprising, for even if the issue may appear to concern only the public in general, such capacities nonetheless equip the petitioner with adequate interest to sue. In David v. Macapagal-Arroyo,^[54][54] the Court aptly explains why:     

Case law in most jurisdictions now allows both “citizen” and “taxpayer” standing in public actions. The distinction was first laid down in Beauchamp v. Silk,^[55][55] where it was held that the plaintiff in 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 expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:^[56][56] “In matter of mere public right, however…the people are the real parties…It is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied.” With respect to taxpayer’s suits, Terr v. Jordan^[57][57] held that “the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied.”^[58][58]

Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta (G.R. No. 191149) all assert their right as citizens filing their petitions on behalf of the public who are directly affected by the issue of the appointment of the next Chief Justice. 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 of public funds.”^[59][59]

PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the law for the purpose of defending, protecting, and preserving the Constitution and promoting its growth and flowering. It also alleges that the Court has recognized its legal standing to file cases on constitutional issues in several cases.^[60][60]

In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a member of the Philippine Bar engaged in the active practice of law, and a former Solicitor General, former Minister of Justice, former Member of the Interim Batasang Pambansa and the Regular Batasang Pambansa, and former member of the Faculty of the College of Law of the University of the Philippines.

The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the Philippines (IBP) for Southern Luzon and 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 application of the constitutional ban on midnight appointments with regard to respondent JBC’s function in submitting the list of nominees is well within the concern of petitioners, who are duty bound to ensure that obedience and respect for the Constitution is upheld, most especially by government offices, such as respondent JBC, who are specifically tasked to perform crucial functions in the whole scheme of our democratic institution.” They further allege that, reposed in them as members of the Bar, is a clear legal interest in the process of selecting the members of the Supreme Court, and in the selection of the Chief Justice, considering that the person appointed becomes a member of the body that has constitutional supervision and authority over them and other members of the legal profession.^[61][61]

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

In any event, the Court retains the broad discretion to waive the requirement of legal standing in favor of any petitioner when the matter involved has transcendental importance, or otherwise requires a liberalization of the requirement.^[62][62]

Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt now in order to remove any obstacle or obstruction to the resolution of the essential issue squarely presented herein. We are not to shirk from discharging our solemn duty by reason alone of an obstacle more technical than otherwise. In Agan, Jr. v. Philippine International Air Terminals Co., Inc.,^[63][63] we pointed out: “Standing is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest.” But even if, strictly speaking, the petitioners “are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised.”^[64][64]

 

Justiciability

 

Intervenor NUPL maintains that there is no actual case or 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 imminent controversy as to whether such list must be submitted to the incumbent President, or reserved for submission to the incoming President.

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 selection process and is now ready to submit the list to the incumbent President; and that petitioner De Castro is merely presenting a hypothetical scenario that is clearly not sufficient for the Court to exercise its power of judicial review.

Intervenors Corvera and Lim separately opine that De Castro’s petition rests on an overbroad and vague allegation of political tension, which is insufficient basis for the Court to exercise its power of judicial review.

Intervenor BAYAN et al. contend that the petitioners are seeking a mere advisory opinion on what the JBC and the President should do, and are not invoking any issues that are justiciable in nature.

Intervenors Bello et al. submit that there exist no conflict of legal rights and no assertion of opposite legal claims in any of the petitions; that PHILCONSA does not allege any action taken by the JBC, but simply avers that the conditional manifestations of two Members of the Court, accented by the divided opinions and interpretations of legal experts, or associations of lawyers and law students on the issues published in the daily newspapers are “matters of paramount and transcendental importance to the bench, bar and general public”; that PHILCONSA fails not only to cite any legal duty or allege any failure to perform the duty, but also to indicate what specific action should be done by the JBC; that Mendoza does not even attempt to portray the matter as a controversy or conflict of rights, but, instead, prays that the Court should “rule for the guidance of” the JBC; that the fact that the Court supervises the JBC does not automatically imply that the Court can rule on the issues presented in the Mendoza petition, because 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 exercising oversight order the action to be redone to conform to the prescribed rules; that the Mendoza petition does not allege that the JBC has performed a specific act susceptible to correction for being illegal or unconstitutional; and that the Mendoza petition asks the 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 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 that is ripe for judicial determination. The reality is that the JBC already commenced the proceedings for the selection of the nominees to be included in a short list to be submitted to the President for consideration of which of them will succeed Chief Justice Puno as the next Chief Justice. Although the position is not yet vacant, the fact that the JBC began the process of nomination pursuant to its rules and practices, although it has yet to decide whether to submit the list of nominees to the incumbent outgoing President or to the next President, makes the situation ripe for judicial determination, because the next steps are the public interview of the candidates, the preparation of the short list of candidates, and the “interview of constitutional experts, as may be needed.”

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

The ripeness of the controversy for judicial determination may not be doubted. The challenges to the authority of the JBC to open the process of nomination and to continue the process until the submission of the list of nominees; the insistence of some of the petitioners to compel the JBC through mandamus to submit the short list to the incumbent President; the counter-insistence of the intervenors to prohibit the JBC from submitting the short list to the incumbent President on the ground that said list should be submitted instead to the next President; the strong position that the incumbent President is already prohibited under Section 15, Article VII from making any appointments, including those to the Judiciary, starting on May 10, 2010 until June 30, 2010; and the contrary position that the incumbent President is not so prohibited are only some of the real issues for determination. All such issues establish the ripeness of the controversy, considering that for some the short list must be submitted before the vacancy actually occurs byMay 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 JBC from moving on with the process that it already began, or that are reasons persuading the JBC to desist from the rest of the process.

We need not await the occurrence of the vacancy by May 17, 2010in order for the principal issue to ripe for judicial determination by the Court. It is enough that one alleges conduct arguably affected with a constitutional interest, but seemingly proscribed by the Constitution. A reasonable certainty of the occurrence of the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the Court has sufficient facts before it to enable it to intelligently adjudicate the issues.^[65][65] Herein, the facts are not in doubt, for only legal issues remain.

 

Substantive Merits

 

I

Prohibition under Section 15, Article VII does not apply

to appointments to fill a vacancy in the Supreme Court

or to other appointments to the Judiciary

 

Two constitutional provisions are seemingly in conflict.

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

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

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

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

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

The Court agrees with the submission.

First. The records of the deliberations of the Constitutional Commission reveal that the framers devoted time to meticulously drafting, styling, and arranging the Constitution. Such meticulousness indicates that the organization and arrangement of the provisions of the Constitution were not arbitrarily or whimsically done by the framers, but purposely made to reflect their intention and manifest their vision of what the Constitution should contain.

The Constitution consists of 18 Articles, three of which embody the allocation of the awesome powers of government among the three great departments, the Legislative (Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a true recognition of the principle of separation of powers that underlies the political structure, as Constitutional Commissioner Adolfo S. Azcuna (later a worthy member of the Court) explained in his sponsorship speech:

We have in the political part of this Constitution opted for the separation of powers in government because we believe that the only way to protect freedom and liberty is to separate and divide the awesome powers of government. Hence, we return to the separation of powers doctrine and the legislative, executive and judicial departments.^[66][66]

As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists the powers vested by the Constitution in the President. The presidential power of appointment is dealt with in Sections 14, 15 and 16 of the Article.

Article VIII is dedicated to the Judicial Department and defines the duties and qualifications of Members of the Supreme Court, among others. Section 4(1) and Section 9 of this Article are the provisions specifically providing for the appointment of Supreme Court Justices. In particular, Section 9 states that the appointment of Supreme Court Justices can only be made by the President upon the submission of a list of at least three nominees by the JBC; Section 4(1) of the Article mandates the President to fill the vacancy within 90 days from the occurrence of the vacancy.

Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the President’s or Acting President’s term does not refer to the Members of the Supreme Court.

Although Valenzuela^[67][67] came to hold that the prohibition covered even judicial appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional Commission, about the prohibition not being intended to apply to the appointments to the Judiciary, which confirmation Valenzuela even expressly mentioned, should prevail.

          Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4 (1), Article VIII, viz:

V            . Intent of the Constitutional Commission

 

The journal of the Commission which drew up the present Constitution discloses that the original proposal was to have an eleven-member Supreme Court. Commissioner Eulogio Lerum wanted to increase the number of Justices to fifteen. He also wished to ensure that that number would not be reduced for any appreciable length of time (even only temporarily), and to this end proposed that any vacancy “must be filled within two months from the date that the vacancy occurs.”  His proposal to have a 15-member Court was not initially adopted.  Persisting however in his desire to make certain that the size  of the Court would not be decreased for any substantial period as a result of vacancies, Lerum proposed the insertion in the provision (anent the Court’s membership) of the same mandate that “IN CASE OF ANY VACANCY, THE SAME SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF.”  He later agreed to suggestions to make the period three, instead of two, months.  As thus amended, the proposal was approved. As it turned out, however, the Commission ultimately agreed on a fifteen-member Court. Thus it was that the section fixing the composition of the Supreme Court came to include a command to fill up any vacancy therein within 90 days from its occurrence.

In this connection, it may be pointed out that that instruction that any “vacancy shall be filled within ninety days” (in the last sentence of Section 4 (1) of Article VIII) contrasts with the prohibition in Section 15, Article VII, which is couched in stronger negative language – that “a President or Acting President shall not make appointments…”

The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph: “WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST” (of nominees by the Judicial and Bar Council to the President). Davide stated that his purpose was to provide a “uniform rule” for lower courts.  According to him, the 90-day period should be counted from submission of the list of nominees to the President in view of the possibility that the President might reject the list submitted to him and the JBC thus need more time to submit a new one.

On the other hand, Section 15, Article VII – which in effect deprives the President of his appointing power “two months immediately before  the next presidential elections up to the end of  his term” – was approved without discussion.^[68][68]

          However, the reference to the records of the Constitutional Commission did not advance or support the result in Valenzuela. Far to the contrary, the records disclosed the express intent of the framers to enshrine in the Constitution, upon the initiative of Commissioner Eulogio Lerum, “a command [to the President] to fill up any vacancy therein within 90 days from its occurrence,” which even Valenzuela conceded.^[69][69] The exchanges during deliberations of the Constitutional Commission on October 8, 1986 further show that the filling of a vacancy in the Supreme Court within the 90-day period was a true mandate for the President, viz:

MR. DE CASTRO. I understand that our justices now in the Supreme Court, together with the Chief Justice, are only 11.

MR. CONCEPCION. Yes.

MR. DE CASTRO. And the second sentence of this subsection reads: “Any vacancy shall be filled within ninety days from the occurrence thereof.”

MR. CONCEPCION. That is right.

MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy?

MR. CONCEPCION. That is right. That is borne out of the fact that in the past 30 years, seldom has the Court had a complete complement.^[70][70]

Moreover, the usage in Section 4(1), Article VIII of the word shall – an imperative, operating to impose a duty that may be enforced^[71][71] – should not be disregarded. Thereby, Sections 4(1) imposes on the President the imperative duty to make an appointment of a Member of the Supreme Court within 90 days from the occurrence of the vacancy. The failure by the President to do so will be a clear disobedience to the Constitution.

The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the Supreme Court was undoubtedly a special provision to establish a definite mandate for the President as the appointing power, and cannot be defeated by mere judicial 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 records of the Constitutional Commission’s deliberations on Section 4 (1), Article VIII.

How Valenzuela justified its pronouncement and result is hardly warranted. According to an authority on statutory construction:^[72][72]

xxx the court should seek to avoid any conflict in the provisions of 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 any other writing for that matter, which may not in some manner contain conflicting provisions. But what appears to the reader to be a conflict may not have seemed so to the drafter. Undoubtedly, each provision was inserted for a definite reason. Often by considering the enactment in its entirety, what appears to be on its face a conflict may be cleared up and the provisions reconciled.

Consequently, that construction which will leave every word operative will be favored over one which leaves some word or provision meaningless because of inconsistency. But a word should not be given effect, if to do so gives the statute a meaning contrary to the intent of the legislature. On the other hand, if full effect cannot be given to the words of a statute, they must be made effective as far as possible. Nor should the provisions of a statute which are inconsistent be harmonized at a sacrifice of the legislative intention. It may be that two provisions are irreconcilable; if so, the one which expresses the intent of the law-makers should control. And the arbitrary rule has been frequently announced that where there is an irreconcilable conflict between the different provisions of a statute, the provision last in order of position will 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 exists between different sections of the same act, and after all other means of ascertaining the meaning of the legislature have been exhausted. Where the conflict is between two statutes, more may be said in favor of the rule’s application, largely because of the principle of implied repeal.

In this connection, PHILCONSA’s urging of a revisit and a review 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 provision, least of all one found in Article VII. It further ignored that the two provisions had no irreconcilable conflict, regardless of Section 15, Article VII being couched in the negative. As judges, we are not to unduly interpret, and should not accept an interpretation that defeats the intent of the framers.^[73][73]

          Consequently, prohibiting the incumbent President from appointing a Chief Justice on the premise that Section 15, Article VII extends to appointments in the Judiciary cannot be sustained. A misinterpretation like Valenzuela should not be allowed to last after its false premises have been exposed.^[74][74] It will not do to merely distinguish Valenzuela from these cases, for the result to be reached herein is entirely incompatible with what  Valenzuela decreed. Consequently, Valenzuela now deserves to be quickly sent to the dustbin of the unworthy and forgettable.

We reverse Valenzuela.

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

There is no question that one of the reasons underlying the adoption of Section 15 as part of Article VII was to eliminate midnight appointments from being made by an outgoing Chief Executive in the mold of the appointments dealt with in the leading case of Aytona v. Castillo.^[75][75] In fact, in Valenzuela, the Court so observed, stating that:

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

 

xxx

 

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

“The filling up of vacancies in  important positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and appointee’s qualifications may undoubtedly be permitted.  But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding appointments.”

As indicated, the Court recognized that there may well be appointments to important positions which have to be made even after the proclamation of the new President.  Such appointments, so long as they are “few and so spaced as to afford some assurance of deliberate action and careful consideration of the 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 have been well considered, were upheld.

Section 15, Article VII has a broader scope than the Aytona ruling.  It may not unreasonably be deemed to contemplate not only “midnight” appointments – those made obviously for partisan reasons as shown by their number and the time of their making – but also appointments presumed made for the purpose of influencing the outcome of the Presidential election.

On the other hand, the exception in the same Section 15 of Article VII – allowing appointments to be made during the period of the ban therein provided – is much narrower than that recognized in Aytona.  The exception allows only the making of temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. Obviously, the article greatly restricts the appointing power of the President during the period of the ban.

Considering the respective reasons for the time frames for filling 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 prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases.  Temporary vacancies can abide the period of the ban which, incidentally and as earlier  pointed  out, comes to exist only once in every six years.  Moreover, those occurring in the lower courts can be filled temporarily by designation.  But prohibited appointments are long-lasting and permanent in their effects.  They may, as earlier pointed out, in fact influence the results of elections and, for that reason, their making is considered an election offense.^[76][76]

Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that the Constitutional Commission confined the prohibition to appointments made in the Executive Department. The framers did not need to extend the prohibition to appointments in the Judiciary, because their establishment of the JBC and their subjecting the nomination and screening of candidates for judicial positions to the unhurried and deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the Judiciary. If midnight appointments in the mold of Aytona were made in haste and with irregularities, or made by an outgoing Chief Executive in the last days of his administration out of a desire to subvert the policies of the incoming President or for partisanship,^[77][77] the appointments to 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 the ascertainment of the purpose of the enactment is a step in the process of ascertaining the intent or meaning of the enactment, because the reason for the enactment must necessarily shed considerable light on “the law of the statute,” i.e., the intent; hence, the enactment should be construed with reference to its intended scope and purpose, and the court should seek to carry out this purpose rather than to defeat it.^[78][78]

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

Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC itself when it met on March 9, 1998 to discuss the question raised by some sectors about the “constitutionality of xxx appointments” to the Court of Appeals in light of the forthcoming presidential elections. He assured that “on the basis of the (Constitutional) Commission’s records, the election ban had no application to appointments to the Court of Appeals.”^[79][79] This confirmation was accepted by the JBC, which then submitted to the President for consideration the nominations for the eight vacancies in the Court of Appeals.^[80][80]

The fault of Valenzuela was that it accorded no weight and due 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 Constitutional Commission. Much of the unfounded doubt about the President’s power to appoint during the period of prohibition in Section 15, Article VII could have been dispelled since its promulgation on November 9, 1998, had Valenzuela properly acknowledged and relied on the confirmation of a distinguished member of the Constitutional Commission like Justice Regalado.

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

Section 14 speaks of the power of the succeeding President to revoke appointments made by an Acting President,^[81][81] and evidently refers only to appointments in the Executive Department. It has no application to appointments in the Judiciary, because temporary or acting appointments can only undermine the independence of the Judiciary due to their being revocable at will.^[82][82] The letter and spirit of the Constitution safeguard that independence. Also, there is no law in the books that authorizes the revocation of appointments in the Judiciary. Prior to their mandatory retirement or resignation, judges of the first and second level courts and the Justices of the third level courts may only be removed for cause, but the Members of the Supreme Court may be removed only by impeachment.

Section 16 covers only the presidential appointments that require confirmation by the Commission on Appointments. Thereby, the Constitutional Commission restored the requirement of confirmation by the Commission on Appointments after the requirement was removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the restored requirement did not include appointments to the Judiciary.^[83][83]

Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule that every part of the statute must be interpreted with reference to the context, i.e. that every part must be considered together with the other parts, and kept subservient to the general intent of the whole enactment.^[84][84] It is absurd to assume that the framers deliberately situated Section 15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds of presidential appointments. If that was their intention in respect of appointments to the Judiciary, the framers, if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely within Section 4 (1) thereof.

Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the Judiciary further undermines the intent of the Constitution of ensuring the independence of the Judicial Department from the Executive and Legislative Departments. Such a holding will tie the Judiciary and the Supreme 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 President, appoint the next Chief Justice is itself suspect, and cannot ensure judicial independence, because the appointee can also become beholden to the appointing authority. In contrast, the appointment by the incumbent President does not run the same risk of compromising judicial independence, precisely because her term will end by June 30, 2010.

 

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

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

The argument also rests on the fallacious assumption that there 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 shown in its comment.

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 the earliest, or May 14, at the latest. If the regular presidential elections are held on May 8, the period of the prohibition is 115 days. If such elections are held on May 14, the period of the prohibition is 109 days. Either period of the prohibition is longer than the full mandatory 90-day period to fill the vacancy in the Supreme Court. The result is that there are at least 19 occasions (i.e., the difference between the shortest possible period of the ban of 109 days and the 90-day mandatory period for appointments) in which the outgoing President would be in no position to comply with 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 have intended such an absurdity.  In fact, in their deliberations on the mandatory period for the appointment of Supreme Court Justices under Section 4 (1), Article VIII, the framers neither discussed, nor mentioned, nor referred to the ban against midnight 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 Supreme Court, or in any of the lower courts.

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

Sec. 9, Article VIII says:

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

xxx

 

 

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

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

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

II

The Judiciary Act of 1948

 

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

Section 12 of the Judiciary Act of 1948 states:

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

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

          Notwithstanding that there is no pressing need to dwell on this peripheral matter after the Court has hereby resolved the question of consequence, we do not find it amiss to confront the matter now.

          We cannot agree with the posture.

          A review of Sections 4(1) and 9 of Article VIII shows that the 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, which appointments require no confirmation by the Commission on Appointments. With reference to the Chief Justice, he or she is appointed by the President as Chief Justice, and the appointment is never in an acting capacity. The express reference to a Chief Justice abhors the idea that the framers contemplated an Acting Chief Justice to head the membership of the Supreme Court. Otherwise, they would have simply written so in the Constitution. Consequently, to rely on Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to appoint the next Chief Justice soonest is to defy the plain intent of the Constitution.   

For sure, the framers intended the position of Chief Justice to be permanent, not one to be occupied in an acting or temporary capacity. In relation to the scheme of things under the present Constitution, Section 12 of the Judiciary Act of 1948 only responds to a rare situation in which the new Chief Justice is not yet appointed, or in which the incumbent Chief Justice is unable to perform the duties and powers of the office. It ought to be remembered, however, that it was enacted because the Chief Justice appointed under the 1935 Constitution was subject to the confirmation of the Commission on Appointments, and the confirmation process might take longer than expected.

The appointment of the next Chief Justice by the incumbent President is preferable to having the Associate Justice who is first in precedence take over. Under the Constitution, the heads of the Legislative and Executive Departments are popularly elected, and whoever are elected and proclaimed at once become the leaders of their respective Departments. However, the lack of any 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 absolutely significant to the life of the nation. With the entire Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no obstacle to the appointment of the next Chief Justice, aside from its being mandatory for the incumbent President to make within the 90-day period fromMay 17, 2010, there is no justification to insist that the successor of Chief Justice Puno be appointed by the next President.

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 assumption of office of his successor, on the other hand. As summarized in the comment of the OSG, the chronology of succession is as follows:

1.     When Chief Justice Claudio Teehankee retired onApril 18, 1988, Chief Justice Pedro Yap was appointed on the same day;

2.     When Chief JusticeYapretired onJuly 1, 1988, Chief Justice Marcelo Fernan was appointed on the same day;

3.     When Chief Justice Fernan resigned onDecember 7, 1991, Chief Justice Andres Narvasa was appointed the following day,December 8, 1991;

4.     When Chief Justice Narvasa retired onNovember 29, 1998, Chief Justice Hilario Davide, Jr. was sworn into office the following early morning ofNovember 30, 1998;

5.     When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio Panganiban was appointed the next day, December 20, 2005; and

6.     When Chief Justice Panganiban retired on December 6, 2006, Chief Justice Reynato S. Puno took his oath as Chief Justice at midnightof December 6, 2006.^[85][85]

III

Writ of mandamus does not lie against the JBC

 

          May the JBC be compelled to submit the list of nominees to the President? 

          Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act that the law specifically enjoins as a duty resulting from an office, trust, or station.^[86][86] It is proper when the act against which it is directed is one addressed to the discretion of the tribunal or officer. Mandamus is not available to direct the exercise of a judgment or discretion in a particular way.^[87][87]

          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.

Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least three nominees to the President for every vacancy in the Judiciary:

Section 8. xxx

(5) The Council shall have the principal function of recommending appointees to the Judiciary. xxx

Section 9. The Members of the Supreme Court and judges of 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.

For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.

 

However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in the Supreme Court within 90 days from the occurrence of the vacancy, and within 90 days from the submission of the list, in the case of the lower courts. The 90-day period is directed at the President, not at the JBC. Thus, the JBC should start the process of selecting the candidates to fill the vacancy in the Supreme Court before the occurrence of the vacancy.

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 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.^[88][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 President.

The distinction between a ministerial act and a discretionary one has been delineated in the following manner:

       The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment.^[89][89]

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

IV

Writ of prohibition does not lie against the JBC

 

 

In light of the foregoing disquisitions, the conclusion is ineluctable that only the President can appoint the Chief Justice. Hence, 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.

On the other hand, 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 standi on that issue.

 

 

WHEREFORE, the Court:

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 byMay 17, 2010;

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

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

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

SO ORDERED.

 

 

 

                                                                    LUCAS P. BERSAMIN

                                                                          Associate Justice

WE CONCUR:

 

 

 

REYNATO S. PUNO

Chief Justice

 

 

 

 

         ANTONIO T. CARPIO                        RENATO C. CORONA

                Associate Justice                                     Associate Justice

 

 

 

CONCHITA CARPIO MORALES       PRESBITERO J. VELASCO, JR.     

               Associate Justice                                         Associate Justice

 

 

 

ANTONIO EDUARDO B. NACHURA    TERESITA J. LEONARDO-DE CASTRO                                                                                                                                                                                          

           Associate Justice                                         Associate Justice

 

 

           ARTURO D. BRION                         DIOSDADO M. PERALTA

                Associate Justice                                       Associate Justice

    MARIANO C. DEL CASTILLO                    ROBERTO A. ABAD

                  Associate Justice                                       Associate Justice

 

 

 

 

        MARTIN S. VILLARAMA, JR.           JOSE PORTUGAL PEREZ

                      Associate Justice                                  Associate Justice

 

 

 

JOSE CATRAL MENDOZA

Associate Justice

 

 

 

C E R T I F I C A T I O N

 

            Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

 

 

                                                                   REYNATO S. PUNO

                                                                          Chief Justice

 

——————————————————————————–

[1]       Filed on February 9, 2010.

[2]       Begun on February 23, 2010.

[3]       Initiated on February 10, 2010.

[4]       Commenced on February 11, 2010.

[5]       Dated February 15, 2010.

[6]       Filed on March 8, 2010.

[7]       A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.

[8]       Petition in G.R. No. 191002, pp. 3-4.

[9]      Id., p. 5.

[10]     Petition in G.R. No. 191032, pp. 4-8.

[11]     Petition in G.R. No. 191057, pp. 1-2.

[12]    Id., p. 11.

[13]     Petition in G.R. No. 191149.

[14]     Petition in G.R. No. 191342.

[15]     http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf

[16]     http://jbc.judiciary.gov.ph/announcements/jbc_announce_2009/jan22%20%2710.pdf

[17]     Comment of the JBC, p. 3.

[18]     Id.

[19]     Id., pp. 4-5.

[20]     Id., p. 5.

[21]     Id.

[22]    Id., p. 6.

[23]     Petition in A.M. No. 10-2-5-SC, pp. 5-6.

[24]     Comment of the JBC, p. 6.

[25]    Id., p. 7; bold emphasis is in the original text.

[26]     Comment of the OSG, pp. 13-14.

[27]     Id., p. 14.

[28]     Id., p. 15.

[29]     Id., pp. 20-24.

[30]     Id., pp. 25-27.

[31]     Id., pp. 29-30.

[32]     Id.

[33]     Id., pp. 32-33.

[34]     Id., pp. 34-35.

[35]     Id.

[36]    Id., pp. 35-36. The OSG posits:

National interest compels the President to make such appointment for it is particularly during this crucial period when national leaders are seeking fresh mandates from the people that the Supreme Court, more than at any other time, represents stability. Hence, a full court is ideal to ensure not only due deliberation on and careful consideration of issues but also expeditious disposition of cases.

Indeed, such function becomes especially significant in view of the fact that this is the first time that the whole country will experience automated elections.

[37]    Id., pp. 36-37. The OSG stresses:

The possible fallouts or serious aftermath of allowing a vacuum in the position of the Chief Justice may be greater and riskier than the consequences or repercussions of inaction. Needless to state, the appointment of the Chief Justice of this Honorable Court (sic) is the most important appointment vested by the 1987 Constitution to (sic) the President.

[38]    Id., p. 37.

[39]    Id., p. 38.

[40]     Filed by Atty. Pitero M. Reig.

[41]     Black’s Law Dictionary, 941 (6th Ed. 1991).

[42]     G.R. No. 155001, May 5, 2003, 402 SCRA 612.

[43]     Citing Kilosbayan, Inc. v. Morato, G.R. No. 118910, July 17, 1995, 246 SCRA 540, 562-563, citing Baker v. Carr, 369 U.S. 186, 7 L. Ed. 633 (1962).

[44]     Citing Kilosbayan, Inc. v. Morato, supra; Bayan v.Zamora, G.R. No. 138570, October 10, 2000; 342 SCRA 449, 478.

[45]     65 Phil. 56.

[46]     G.R. No. 117, November 7, 1945 (Unreported).

[47]     G.R. No. 2947, January 11, 1959 (Unreported).

[48]     77 Phil. 1012 (1947).

[49]     110 Phil. 331 (1960).

[50]     84 Phil. 368 (1949)

[51]     E.g., Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384 SCRA 152 (in which the Court ruled that the enforcement of the constitutional right to information and the equitable diffusion of natural resources are matters of transcendental importance which clothe the petitioner with locus standi); Bagong Alyansang Makabayan v. Zamora, G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449 (in which the Court held that “given the transcendental importance of the issues involved, the Court may relax the standing requirements and allow the suit to prosper despite the lack of direct injury to the parties seeking judicial review” of the Visiting Forces Agreement); Lim v. Executive Secretary, G.R. No. 151445, April 11, 2002, 380 SCRA 739 (in which the Court, albeit conceding that the petitioners might not file suit in their capacity as taxpayers without a showing that Balikatan 02-01 involved the exercise of Congress’ taxing or spending powers, reiterated Bagong Alyansang Makabayan v. Zamora, declaring that cases of transcendental importance must be settled promptly and definitely and the standing requirements may be relaxed); and Osmeña v. Commission on Elections, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199 SCRA 750 (in which the Court held that where serious constitutional questions were involved, the transcendental  importance to the public of the cases demanded that they be settled promptly and definitely, brushing aside technicalities of procedure).

[52]     L-No. 40004, January 31, 1975, 62 SCRA 275.

[53]     E.g., Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27 (in which the Court held that it is sufficient that the petitioner is a citizen interested in the execution of the law, because the question is one of public duty and the enforcement of a public right, and the people are the real party-in-interest); Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530 (in which the Court declared that where an assertion of a public right is involved, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen and is part of the general public which possesses the right); Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No. 81311, June 30, 1988, 163 SCRA 371 (in which the Court disregarded objections to taxpayers’ lack of personality to sue in determining the validity of the VAT Law); Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264 (in which the Court pronounced that although no expenditure of public funds was involved in the questioned contract, the petitioner was nonetheless clothed with the legal personality under the disclosure provision of the Constitution to question it, considering its important role in the economic development of the country and the magnitude of the financial consideration involved, indicating that public interest was definitely involved); and Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343 (in which the Court ruled that it had the discretion to waive the requirement of locus standi in determining the validity of the implementation of the Comprehensive Agrarian Reform Program, although the petitioners were not, strictly speaking, covered by the definition of  proper party).

[54]     David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.

[55]     275 Ky 91, 120 SW2d 765 (1938).

[56]     19  Wend. 56 (1837).

[57]     232  NC 48, 59 SE2d 359 (1950).

[58]     Bold emphasis is in the original text.

[59]     Petition in G.R. No. 191032, p. 2.

[60]     Petition in G.R. No. 191057, pp. 3-4; citing  the cases of PHILCONSA v. Gimenez, 15 SCRA 479; PHILCONSA v. Mathay, 18 SCRA 300; PHILCONSA v. Enriquez, 235 SCRA 506; and Lambino v. COMELEC, 505 SCRA 160.

[61]     Petition in G.R. No. 191342, pp. 2-3.

[62]     See, for instance, Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000, 338 SCRA 81 (where the petitioner questioned the validity of the deployment and utilization of the Marines to assist the PNP in law enforcement,  asserting that IBP was the official organization of Filipino lawyers tasked with the bounden duty to uphold the rule of law and the Constitution, but the Court held that the IBP had not shown that it was so tasked: “In this case, a reading of the petition shows that the IBP has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents.  Moreover, because peace and order are under constant threat and lawless violence occurs in increasing tempo, undoubtedly aggravated by theMindanaoinsurgency problem, the legal controversy raised in the petition almost certainly will not go away.  It will stare us in the face again.  It, therefore, behooves the Court to relax the rules on standing and to resolve the issue now, rather than later”, and went on to resolve the issues because the petitioner advanced constitutional issues that deserved the attention of the Court in view of their seriousness, novelty, and weight as precedents).

[63]     Supra, note 42, p. 645.

[64]    Id.

[65]     See Buckley v. Valeo, 424U.S.1, 113-118 (1976); Regional Rail Reoganization Act Cases, 419U.S.102, 138-148 (1974).

[66]    Record of Proceedings and Debates of the Constitutional Commission, Vol. V., p. 912, October 12, 1998.

[67]     Supra, note 6, p. 426-427, stating:

Considering the respective reasons for the time frames for filling 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 prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban which, incidentally and as earlier  pointed  out, comes to exist only once in every six years.  Moreover, those occurring in the lower courts can be filled temporarily by designation.  But prohibited appointments are long-lasting and permanent in their effects.  They may, as earlier pointed out, in fact influence the results of elections and, for that reason, their making is considered an election offense.

To the contention that may perhaps be asserted, that Sections 4 (1) and 9 of Article VIII should prevail over Section 15 of Article VII, because they may be considered later expressions of the people when they adopted  the Constitution, it suffices to point out that the Constitution must be construed in its entirety as one, single, instrument.

To be sure, instances may be conceived of the imperative need for an appointment, during the period of the ban, not only in the executive but also in the Supreme Court. This may be the case should the membership of the court be so reduced that it will have no quorum or should the voting on a particularly important question requiring expeditious resolution be evenly divided.  Such a case, however, is covered by neither Section 15 of Article VII nor Section 4 (1) and 9 of Article VIII.

[68]    Id., pp. 422-423.

[69]    Id., p. 423.

[70]     Record of Proceedings and Debates of the Constitutional Commission, Vol. V.,  pp. 632-633.

[71]     Dizon v. Encarnacion, G.R. No. L-18615, December 24, 1963, 9 SCRA 714.

[72]     Crawford, Earl. T., The Construction of Statutes, Thomas Law Book Company,St. Louis,Missouri, 262-264 (1940).

[73]     Garcia v. Social Security Commission Legal and Collection, G.R. No. 170735, December 17, 2007, 540 SCRA 456, 472; citing Escosura v. San Miguel Brewery, Inc., 4 SCRA 285, (1962).

[74]     According toArizonav. Rumsey, 467U. S.203, 212 (1984): “Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis demands special justification.” The special justification for the reversal of Valenzuela lies in its intrinsic unsoundness.

[75]     No. L-19313, January 19, 1962, 4 SCRA 1.

[76]     Supra, note 6, pp. 424-426; bold underscoring supplied for emphasis.

[77]     Aytona v. Castillo, supra, note 74, pp. 8-10 (N.B. – In the time material to Aytona, there were judges of the Court of First Instance who were appointed to districts that had no vacancies, because the incumbents had not qualified for other districts to which they had been supposedly transferred or promoted; at any rate, the appointments still required confirmation by the Commission on Appointments).

[78]     Crawford, op. cit., supra, note 72, pp. 248-249.

[79]     Supra, note 6, p. 413.

[80]<![endif]>    Id.

[81]     Section 14. Appointments extended by an Acting President shall remain effective, unless revoked by the elected President within ninety days from his assumption or reassumption of office.

[82]     Cruz,I., Philippine Political Law, 253 (2002); also Rilloraza v. Vargas,  80 Phil. 297 (1948).

[83]     Record of Proceedings and Debates of the Constitutional Commission, Vol. V., p. 908, which indicates that in his sponsorship speech delivered on October 12, 1986 on the floor of the Constitutional Commission, Commissioner Teofisto Guingona explained that “[a]ppointments to the judiciary shall not be subject to confirmation by the Commission on Appointments.”

[84]       Rodriguez, Statutory Construction, 171 (1999).

[85]     Comment of the OSG, p. 37.

[86]     Section 3, Rule 65, 1997 Rules of Civil Procedure.

[87]     JG Summit Holdings, Inc. v. Court of Appeals, G.R. No. 124293, November 20, 2000, 345 SCRA 143.

[88]     Nery v. Gamolo, A.M. No. P-01-1508, February 7, 2003, 397 SCRA 110, citing Musni v. Morales, 315 SCRA 85, 86 (1999).

[89]     Espiridion v. Court of Appeals, G.R. No. 146933, June 8, 2006, 490 SCRA 273.

.

.

 

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

IN RE APPOINTMENTS DATED MARCH 30, 1998 OF HON. MATEO A. VALENZUELA AND HON. PLACIDO B. VALLARTA AS JUDGES OF THE REGIONAL TRIAL COURT OF BRANCH 62, BAGO CITY AND OF BRANCH 24, CABANATUAN CITY, RESPECTIVELY  (A.M. NO. 98-5-01-SCN, 09 NOVEMBER 1998, NARVASA, C.J.):

The question presented for resolution in the administrative matter at bar is whether, during the period of the ban on appointments imposed by Section 15, Article VII of the Constitution, the President is nonetheless required to fill vacancies in the judiciary, in view of Sections 4(1) and 9 of Article VIII. A corollary question is whether he can make appointments to the judiciary during the period of the ban in the interest of public service.

Resolution of the issues is needful; it will preclude a recurrence of any conflict in the matter of nominations and appointments to the Judiciary – as that here involved – between the Chief Executive, on the one hand, and on the other, the Supreme Court and the Judicial and Bar Council over which the Court exercises general supervision and wields specific powers including the assignment to it of other functions and duties in addition to its principal one of recommending appointees to the Judiciary, and the determination of its Members’ emoluments.1 [Section 8, Article VIII, Constitution.]

I The Relevant Facts

The Resolution of the Court En Banc, handed down on May 14, 1998, sets out the relevant facts and is for that reason hereunder reproduce in full.

Referred to the Court En Banc by the Chief Justice are the appointments signed by His Excellency the President under the date of March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62,BagoCityand of Branch 24,CabanatuanCity, respectively. The appointments were received at the Chief Justice’s chambers on May 12, 1998. The referral was made in view of the serious constitutional issue concerning said appointments arising from the pertinent antecedents.

The issue was first ventilated at the meeting of the Judicial and Bar Council on March 9, 1998. The meeting had been called, according to the Chief Justice as Ex Officio Chairman, to discuss the question raised by some sectors about the “constitutionality of ** appointments” to the Court of Appeals, specifically, in light of the forthcoming presidential elections. Attention was drawn to Section 15, Article VII of the Constitution reading as follows:

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

On the other hand, appointments to fill vacancies in the Supreme court during the period mentioned in the provision just quoted could seemingly be justified by another provision of the same Constitution. Section 4(1) of Article VIII which states:

“SEC 4 (1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. ** **. Any vacancy shall be filled within ninety days from the occurrence thereof.”

Also pertinent although not specifically discussed is Section 9 of the same Article VIII which provides that for the lower courts, the President shall issue the appointments – from a list of at least three nominees prepared by the Council for every vacancy – within ninety days from the submission of the list.

The view was then expressed by Senior associate Justice Florenz D. Regalado, Consultant of the Council, who had been a member of the Committee of the Executive Department and of the Committee on the Judicial Department of the 1986 Constitutional Commission, that on the basis of the Commission’s records, the election ban had no application to appointments to the Court of Appeals. Without any extended discussion or any prior research and study on the part of the other Members of the JBC, this hypothesis was accepted, and was then submitted to the President for consideration, together with the Council’s nominations for eight (8) vacancies in the Court of Appeals.

On April 6, 1998 the Chief Justice received an official communication from the Executive Secretary transmitting the appointments of eight (8) Associate Justices of the Court of Appeals all of which had been duly signed on March 11, 1998 by His Excellency, the President. In view of the fact that all the appointments had been signed on March 11, 1998 – the day immediately before the commencement of the ban on appointments imposed by Section 15, Article VII of the Constitution – which impliedly but no less clearly indicated that the President’s Office did not agree with the hypothesis that appointments to the Judiciary were not covered by said ban, the Chief Justice resolved to defer consideration of nominations for the vacancy in the Supreme Court created by the retirement of Associate Justice Ricardo J. Francisco, specially considering that the Court had scheduled sessions in Baguio City in April, 1998, that the legislature’s representatives to the JBC were occupied with the forthcoming elections, and that a member of the Council was going on a trip out of the country.

On May 4, 1998, the Chief Justice received a letter from the President, addressed to the JBC requesting transmission of the “list of final nominees” for the vacancy “no later than Wednesday, May 6, 1998,” in view of the duty imposed on him by the Constitution “to fill up the vacancy ** within ninety (90) days from February 13, 1998, the date the present vacancy occurred.”

On May 5, 1998, Secretary of Justice Silvestre Bello III requested the Chief Justice for “guidance” respecting the expressed desire of the “regular members” of the JBC to hold a meeting immediately to fill up the vacancy in the Court in line with the President’s letter of May 4. The Chief Justice advised Secretary Bello to await the reply that he was drafting to the President’s communication, a copy of which he would give to the Secretary the following day.

On May 6, 1998 the Chief Justice sent his reply to the President. He began by stating that no sessions had been scheduled for the Council after the May elections for the reason that apparently the President’s Office did not share the view posited by the JBC that Section 15, Article VII of the Constitution had no application to JBC-recommended appointments – the appointments to the Court of Appeals having been all uniformly dated March 11, 1998, before the commencement of the prohibition in said provision – thus giving rise to the “need to undertake further study of the matter,” prescinding from “the desire to avoid any constitutional issue regarding the appointment to the mentioned vacancy” and the further fact that “certain senior members of the Court of Appeals ** (had) asked the Council to reopen the question of their exclusion on account of age from such (final) list.” He closed with the assurance that the JBC expected to deliberate on the nominations “forthwith upon the completion of the coming elections.” The letter was delivered to Malacañang at about 5 o’clock in the afternoon of May 6, 1998, and a copy given to the Office of Justice Secretary Bello shortly before that hour.

It would appear, however, that the Justice Secretary and the regular members of the Council had already taken action without awaiting the Chief Justice’s promised response to the President’s letter of May 4, 1998. On that day, May 6, 1998, they met at some undisclosed place, deliberated, and came to an agreement on a resolution which they caused to be reduced to writing and thereafter signed. In that two-page Resolution they drew attention to Section 4 (1), Article VIII of the Constitution (omitting any mention of Section 15, Article VII) as well as to the President’s letter of May 4 in which he “emphatically requested that the required list of final nominee be submitted to him;” and pointing out that the “Council would be remiss in its duties” should it fail to submit the nominations, closed with an appeal that the Chief Justice convene the Council for the purpose “on May 7, 1998, at 2:00 o’clock in the afternoon.” This Resolution they transmitted to the Chief Justice together with their letter, also dated May 6, in which they emphasized that “we are pressed for time” again drawing attention to Section 4 (1). In Article VIII of the Constitution (and again omitting any reference to Section 15, Article VII). They ended their letter with the following intriguing paragraph:

“Should the Chief Justice be not disposed to call for the meeting aforesaid, the undersigned members constituting the majority will be constrained to convene the Council for the purpose of complying with its Constitutional mandate.”

It seems evident, as just intimated, that the resolution and the covering letter were deliberated on, prepared and signed hours before delivery of the Chief Justice’s letter to the President and the Justice Secretary.

Since the Members of the Council appeared determined to hold a meeting regardless of the Chief Justice’s wishes, the latter convoked the Council to a meeting at 3 o’clock in the afternoon of May 7, 1998. Present at the meeting were Chief Justice, Secretary Bello, ex officio member and the regular members of the Council; Justice Regino Hermosisima, Atty. Teresita Cruz Sison, Judge Cesar C. Peralejo. Also present on the invitation of the Chief Justice, were Justices Hilario G. Davide, Jr., Flerida Ruth P. Romero, Josue N. Bellosillo, Reynato S. Puno, Jose C. Vitug, Vicente V. Mendoza, Artemio V. Panganiban, Antonio M. Martinez, Leonardo A. Quisumbing and Fidel P. Purisima. The Chief Justice reviewed the events leading to the session, and after discussion, the body agreed to give the President time to answer the Chief Justice’s letter of May 6, 1998.

On May 7, 1998, the Chief Justice received a letter from His Excellency the President in reply to his letter of May 6 (which the President said had been “received early this morning”). The President expressed the view that “the election-ban provision (Article VII, Sec. 15) ** applies only to executive appointments or appointments in the executive branch of government,” the whole article being “entitled ‘EXECUTIVE DEPARTMENT.'” He also observed that further proof of his theory “is the fact that appointments to the judiciary have special, specific provisions applicable to them” (citing Article VIII, Sec. 4 [1] and Article VIII, Section 9. In view thereof, he “firmly and respectfully reiterate(d) ** (his) request for the Judicial and Bar Council to transmit ** the final list of nominees for the lone Supreme Court vacancy.”

The Chief Justice replied to the letter the following day, May 8, 1998. Since the Chief Justice’s letter explains the issue quite plainly, it is here quoted in full.

“Thank you for your letter of May 7, 1998, responding to my own communication of May 6, 1998 which, I would like to say, reflects the collective sentiments of my colleagues in the Supreme Court. Knowing how busy you are, I will deal straightaway with the points set out in your letter.

The dating of the latest appointments to the Court of Appeals was adverted to merely to explain how we in the Court and the JBC came to have the impression that you did not share the view expressed in the JBC minutes of March 9, 1998 ‘that there is no election ban with regard to the JBC appointments.’ Be this as it may, the Court feels that there is a serious question concerning the matter in light of the seemingly inconsistent provisions of the Constitution. The first of these is Section 15, Article VII, which reads:

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

The second is Section 4(1) of Article VIII which states:

‘SEC 4(1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. ** **. Any vacancy shall be filled within ninety days from the occurrence thereof.’

As you can see, Your Excellency, Section 15 of Article VII imposes a direct prohibition on the President: he “shall not make appointments” within the period mentioned, and since there is no specification of which appointments are proscribed, the same may be considered as applying to all appointments of any kind and nature. This is the general rule then, the only exception being only as regards “executive positions” as to which “temporary appointments” may be made within the interdicted period “when continued vacancies therein will prejudice public service or endanger public safety.” As the exception makes reference only to “executive” positions, it would seem that “judicial” positions are covered by the general rule.

On the other hand, Section 4 (1) of Article VIII, requires that any vacancy in the Supreme Court “shall be filled within ninety days from the occurrence thereof.” Unlike Section 15, Article VII, the duty of filling the vacancy is not specifically imposed on the President; hence, it may be inferred that it is a duty shared by the Judicial and Bar council and the President.

Now, in view of the general prohibition in the first-quoted provision, how is the requirement of filling vacancies in the Court within ninety days to be construed? One interpretation that immediately suggests itself is that Section 4(1), Article VIII is a general provision while Section 15, Article VII is a particular one; that is to say, normally, when there are no presidential elections – which after all occur only every six years – Section 4(1), Article VIII shall apply: vacancies in the Supreme Court shall be filled within 90 days; but when (as now) there are presidential elections, the prohibition in Section 15, Article VII comes into play: the President shall not make any appointments. The reason for said prohibition, according to Fr. J. Bernas, S.J., an authority on Constitutional Law and himself a member of the Constitutional Commission, is “(I)n order not to tie the hands of the incoming President through midnight appointments.” Another interpretation is that put forth in the Minutes of the JBC Meeting of March 9, 1998.

I must emphasize that the validity of any appointment to the Supreme Court at this time hinges on the correct interpretation of the foregoing sections of the Constitution. On account of the importance of the question, I consulted the Court about it but, as I stated in my letter of May 6, 1998, “it declined to take any position, since obviously there had not been enough time to deliberate on the same ** (although it) did agree that further study was necessary **.”

Since the question has actually come up, and its importance cannot be gainsaid, and it is the Court that is empowered under the Constitution to make an authoritative interpretation of its (provisions) or of those of any other law. I believe that the Court may now perhaps consider the issue ripe for determination and come to grips with it, to avoid any possible polemics concerning the matter. However the Court resolves the issue, no serious prejudice will be done. Should the Court rule that the President is indeed prohibited to make appointments in a presidential election year, then any appointment attempted within the proscribed period would be void anyway. If the Court should adjudge that the ban has no application to appointments to the Supreme Court, the JBC may submit nominations and the President may make the appointment forthwith upon such adjudgment.

The matter is a delicate one, quite obviously, and must thus be dealt with with utmost circumspection, to avoid any question regarding the validity of an appointment to the Court at this time, or any accusation of “midnight” appointments or rash, hasty action on the part of the JBC or the President.

In view thereof, and upon the advice and consent of the Members of the Court, I am requesting the regular Members of the Judicial and Bar Council to defer action on the matter until further advice by the Court. I earnestly make the same request of you, Your Excellency, I assure you, however, that as befits a matter in which the Chief Executive has evinced much interest, my colleagues and I will give it preferential and expeditious attention and consideration. To this end, I intend to convene the Court by next week, at the latest.”

On May 8, 1998, again on the insistence of the regular Members of the JBC, another meeting was held at which were present the Chief Justice, the Secretary of Justice and the three regular Members above mentioned, as well as Justices Hilario G. Davide, Jr., Flerida Ruth P. Romero, Josue N. Bellosillo, Reynato S. Puno, Jose C. Vitug, Santiago M. Kapunan, Vicente V. Mendoza, Artemio V. Panganiban, Antonio M. Martinez, Leonardo A. Quisumbing and Fidel P. Purisima. The meeting closed with a resolution that “the constitutional provisions ** (in question) be referred to the Supreme Court En Banc for appropriate action, together with the request that the Supreme Court consider that the ninety-day period stated in Section 4 (1), Article VIII be suspended or interrupted in view of the peculiar circumstances **.”

On May 12, 1998, the Chief Justice received from Malacañang the appointments of two (2) Judges of the Regional Trial Court mentioned above. This places on the Chief Justice the obligation of acting thereon; i.e., transmitting the appointments to the appointees so that they might take their oaths and assume their duties of their office. The trouble is that in doing so, the Chief Justice runs the risk of acting in a manner inconsistent with the Constitution, for these appointments appear prima facie, at least, to be expressly prohibited by Section 15, Article VII of the charter. This circumstance, and the referral of the constitutional question to the Court in virtue of the Resolution of May 8, 1998, supra, operate to raise a justiciable issue before the Court, an issue of sufficient importance to warrant consideration and adjudication on the merits.

Accordingly, the Court Resolved to (1) CONSIDER the case at bar an administrative matter and cause it to be appropriately docketed; (2) to DIRECT the Clerk of Court to immediately serve copies of this Resolution on (a) the Office of the President, (b) the Office of the Solicitor General, (c) Hon. Mateo A. Valenzuela, and (d) Hon. Placido B. Vallarta (at their addresses recorded in the Judicial and Bar Council); and (3) to REQUIRE the Office of the President, the Office of the Solicitor General, Hon. Mateo A. Valenzuela, and Hon. Placido B. Vallarta to file their comments on this Resolution within fifteen (15) days from notice thereof.

The Court further Resolved that (1) pending the foregoing proceedings and the deliberation by the Court on the matter, and until further orders, no action be taken on the appointments of Hon. Valenzuela and Hon. Vallarta which in the meantime shall be held in abeyance and not given any effect and said appointees shall refrain from taking their oath of office; and that (2) exercising its power of supervision over the Judicial and Bar Council, said Council and its ex officio and regular Members herein mentioned be INSTRUCTED, as they are hereby INSTRUCTED, to defer all action on the matter of nominations to fill up the lone vacancy in the Supreme Court or any other vacancy until further orders.

SO ORDERED.

II The Relevant Pleadings

In compliance with the foregoing Resolution, the following pleadings and other documents were filed, to wit:

   1) the manifestation dated May 28, 1998 of Hon. Mateo A. Velenzuela in compliance with the Resolution of May 14, 1998;

   2) the letter dated June 1, 1998 of Hon. Placido B. Vallarta in compliance with the same Resolution;

   3) the “Comments” of Hon. Valenzuela dated May 25, 1998;

   4) his “Addendum to Comments” dated June 8, 1998;

   5) his “Explanation” dated June 8, 1998;

   6) the letter of Hon. Vallarta dated June 8, 1998;

   7) his letter dated June 16, 1998;

   8) the “Explanation” of Hon. Valenzuela dated July 17, 1998; and

   9) the “Comment” of the Office of the Solicitor General dated August 5, 1998.

A. Valenzuela’s Assumption of Duty as Judge on May 14, 1998

In his Manifestation dated May 28, 1998, Judge Valenzuela alleged inter alia:

“**that on May 14, 1998, he took his Oath of Office as Judge, RTC Branch 62, Bago City, before Hon. Anastacio C. Rufon, Judge RTC, Branch 52, Bacolod City, pursuant to Appointment dated March 30, 1998, (and) he also reported for duty as such before said RTC Branch 62, Bago City ** (and that he did so) “faultlessly,” ** without knowledge of the on-going deliberations on the matter.”

At that time, the originals of the appointments of Messrs. Valenzuela and Vallarta, dated March 30, 1998 – addressed to them “Thru: the Chief Justice, Supreme Court of the Philippines, Manila.” and which had been sent to and received by the Chief Justice on May 12, 19982 [N.B. The letter of the JBC dated March 3, 1998 containing the nomination of Judge Valenzuela and two (2) others to RTC Branch 62,BagoCity, together with nominations of other persons to four (4) other courts, was received by the Office of the President on March 20, 1998. The JBC’s nominations of Judge Vallarta and three others to RTC Branch 24,CabanatuanCity, and of others to MeTC Branch 56, Malabon, are contained in its letter dated February 24, 1998, also received on March 20, 1998 at Malacañang. Of those thus nominated, only Messrs. Valenzuela and Vallarta were appointed by the President.] — were still in the latter’s Office, and had not been transmitted to them precisely because of the serious issue concerning the validity of their appointments. Indeed, one of the directives in the Resolution of May 14, 1998 was that “pending ** deliberation by the Court on the matter, and until further orders, no action be taken on the appointments ** which in the meantime shall be held in abeyance and not given any effect **.” For this reason, by Resolution dated June 23, 1998, the Court required Valenzuela to EXPLAIN by what authority he had taken his oath on May 14, 1998 as Judge of Branch 62 of the RTC atBagoCity. In his “Explanation” dated July 17, 1998. Valenzuela stated that he did so because on May 7, 1998 he “received from Malacañang copy of his appointment **” which contained the following direction: “By virtue hereof, you may qualify and enter upon the performance of the duties of the office**.”

The Court then deliberated on the pleadings and documents above mentioned, in relation to the facts and circumstances on record, and thereafter Resolved to promulgate the following opinion.

III The Relevant Constitutional Provisions

The provision of the Constitution material to the injury at bar read as follows:3

Section 15, Article VII:

“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 execute positions when continued vacancies therein will prejudice public service or endanger public safety.”

Section 4 (1), Article VIII:

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

Section 9, Article VIII:

“The Members of the Supreme Court and judges in lower courts shall be appointed by the President from the list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.

For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.”

IV The Court’s View

The Court’s view is that during the period stated in Section 15, Article VII of the Constitution – “(t)wo months immediately before the next presidential elections and up to the end of his term” – the President is neither required to make appointments to the courts nor allowed to do so; and that Sections 4(1) and 9 fo Article VIII simply mean that the President is required to fill vacancies in the courts within the time frames provided therein unless prohibited by Section 15 of Article VII. It is noteworthy that the prohibition on appointments comes into effect only once every six years.

V Intent of the Constitutional Commission

The journal of the Commission which drew up the present Constitution discloses that the original proposal was to have an eleven-member Supreme Court. Commissioner Eulogio Lerum wanted to increase the number of Justices to fifteen. He also wished to ensure that that number would not be reduced for any appreciable length of time (even only temporarily), and to this end proposed that any vacancy “must be filled within two months from the date that the vacancy occurs.” His proposal to have a 15-member Court was not initially adopted. Persisting however in his desire to make certain that the size of the Court would not be decreased for any substantial period as a result of vacancies, Lerum proposed the insertion in the provision (anent the Court’s membership) of the same mandate that “IN CASE OF ANY VACANCY, THE SAME SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF.” He later agreed to suggestions to make the period three, instead of two, months. As thus amended, the proposal was approved.4 [RECORD OF THE CONSTITUTIONAL COMMISSION (hereafter cited as RECORD) pp. 479-482 (Session of July 14, 1986)] As it turned out, however, the Commission ultimately agreed on a fifteen-member Court.5 [RECORD, pp. 632-634 (Session of Oct. 8, 1986)] Thus it was that the section fixing the composition of the Supreme Court came to include a command to fill up any vacancy therein within 90 days from its occurrence.

In this connection, it may be pointed out that that instruction that any “vacancy shall be filled within ninety days” (in the last sentence of Section 4 (1) of Article VIII) contrasts with the prohibition in Section 15, Article VII, which is couched in stronger negative language – that “a President or Acting President shall not make appointments…”

The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph: “WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST” (of nominees by the Judicial and Bar Council to the President).6 [1 RECORD, pp. 489-490 (Session of July 14, 1986)] Davide stated that his purpose was to provide a “uniform rule” for lower courts. According to him, the 90-day period should be counted from submission of the list of nominees to the President in view of the possibility that the President might reject the list submitted to him and the JBC thus need more time to submit a new one.7 [Id.at p. 445.]

On the other hand, Section 15, Article VII – which in effect deprives the President of his appointing power “two months immediately before the next presidential elections up to the end of his term” – was approved without discussion.

VI. Analysis of Provisions

Now, it appears that Section 15, Article VII is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within the two months preceding a Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code, viz.:8 [ mphasis supplied.]

SEC. 261. Prohibited Acts. – The following shall be guilty of an election offense:

(a) Vote buying and vote selling – (1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination of choice of a candidate in a convention or similar selection process of a political party.

(g) Appointment of new employees, creation of new position, promotion, or giving salary increases. – During the period of forty five days before a regular election and thirty days before a special election, (1) any head, official or appointing officer of a government office, agency or instrumentality whether national or local, including government-owned or controlled corporations, who appoints or hires any new employee, whether provisional, temporary, or casual, or creates and fills any new position, except upon prior authority of the Commission. The Commission shall not grant the authority sought unless, it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and that the position shall not be filled in a manner that may influence the election.

The second type of appointments prohibited by Section 15, Article VII consists of the so-called “midnight” appointments. In Aytona v. Castillo,9 [114 Phil. vii (1962)] it was held that after the proclamation of Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in his bid for reelection, became no more than a “caretaker” administrator whose duty was to “prepare for the orderly transfer of authority ot the incoming President.” Said the Court:

“The filling up of vacancies in important positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and appointee’s qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding appointments.”

As indicated, the Court recognized that there may well be appointments to important positions which have to be made even after the proclamation of the new President. Such appointments, so long as they are “few and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee’s qualifications,”10 [Id at x-xi.] can be made by the outgoing President. Accordingly, several appointments made by President Garcia, which were shown to have been well considered, were upheld.11 [See Merrera v. Liwag, 18 Phil. 1038 (1963); Jorge v. Mayor, 119 Phil. 595 (1964); Quimsing v. Tajanglangit, 119 Phil. 729 (1964)]

Section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably be deemed to contemplate not only “midnight” appointments – those made obviously for partisan reasons as shown by their number and the time of their making – but also appointments presumed made for the purpose of influencing the outcome of the Presidential election.

On the other hand, the exception in the same Section 15 of Article VII – allowing appointments to be made during the period of the ban therein provided – is much narrower than that recognized in Aytona. The exception allows only the making of temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. Obviously, the article greatly restricts the appointing power of the President during the period of the ban.

Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on the President’s power of appointment, it is this Court’s view that, as a general proprosition, in case of conflict, the former should yield to the latter. Surely, the prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban which, incidentally and as earlier pointed out, comes to exist only once in every six years. Moreover, those occurring in the lower courts can be filled temporarily by designation. But prohibited appointments are long-lasting and permanent in their effects. They may, as earlier pointed out, in fact influence the results of elections and, for that reason, their making is considered an election offense.

To the contention that may perhaps be asserted, that Sections 4 (1) and 9 of Article VIII should prevail over Section 15 of Article VII, because they may be considered later expressions of the people when they adopted the Constitution, it suffices to point out that the Constitution must be construed in its entirety as one, single, instrument.

To be sure, instances may be conceived of the imperative need for an appointment, during the period of the ban, not only in the executive but also in the Supreme Court. This may be the case should the membership of the court be so reduced that it will have no quorum or should the voting on a particularly important question requiring expeditious resolution be evenly divided. Such a case, however, is covered by neither Section 15 of Article VII nor Section 4 (1) and 9 of Article VIII.12 [SEE Sec. 9, second paragraph, of R.A. No. 296 (The Judiciary Act of 1948), in relation to Sec. 47 of B.P. No. 129 (The Judiciary Reorganization Act of 1980): cf: Rilloraza v. Vargas 80 Phil. 297 (1948)]

VII. A Last Word

A final word, concerning Valenzuela’s oath-taking and “reporting for duty” as Presiding Judge of RTC Branch 62, Bago City, on May 14, 1998.13 [SEE footnote 2, supra.] Standing practice is for the originals of all appointments to the Judiciary – from the highest to the lowest courts – to be sent by the Office of the President to the Office of the Chief Justice, the appointments being addressed to the appointees “Thru: the Chief Justice, Supreme Court, Manila.” It is a Clerk of Court of the Supreme Court, in the Chief Justice’s behalf, who thereafter advises the individual appointees of their appointments and also of the date of commencement of the pre-requisite orientation seminar, to be conducted by the Philippine Judicial Academy for new Judges. The rationale of this procedure is salutary and readily perceived. The procedure ensures the authenticity of the appointments, enables the Court, particularly of the Office of the Court Administrator, to enter in the appropriate records all appointments to the Judiciary as well as other relevant data such as the dates of qualification, the completion by the appointees of their pre-requisite orientation seminars, their assumption of duty, etc.

The procedure also precludes the possibility, however remote, of Judges acting on spurious or otherwise defective appointments. It is obviously not advisable, to say the least, for a Judge to take his oath of office and enter upon the performance of his duties on the basis alone of a document purporting to be a copy of his appointment coming from Malacañang, the authenticity of which has not been verified from the latter of the Office of the Court Administrator; or otherwise to begin performing his duties as Judge without the Court Administrator knowing of that fact. The undesirability of such a situation is illustrated by the case of Judge Valenzuela who acted, with no little impatience or rashness, on a mere copy of his supposed appointment, without having received any formal notice from this Court, and without verifying the authenticity of the appointment or the propriety of taking oath on the basis thereof. Had he bothered to inquire about his appointment from the Court Administrator’s Office, he would have been informed of the question concerning it and the Court’s injunction.

VIII. Conclusion

The appointments of Messrs. Valenzuela and Vallarta on March 30, 1998 (transmitted to the Office of the Chief Justice on May 14, 1998) were unquestionably made during the period of the ban. Consequently, they come within the operation of the first prohibition relating to appointments which are considered to be for the purpose of buying votes or influencing the election. While the filling of vacancies in the judiciary is undoubtedly in the public interest, there is no showing in this case of any compelling reason to justify the making of the appointments during the period of the ban. On the other hand, as already discussed, there is a strong public policy for the prohibition against appointments made within the period of the ban.

In view of the foregoing considerations, the Court Resolved to DECLARE VOID the appointments signed by His Excellency the President under date of March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively, and to order them, forthwith on being served with notice of this decision, to forthwith CEASE AND DESIST from discharging the office of Judge of the Courts to which they were respectively appointed on March 30, 1998. This, without prejudice to their being considered anew by the Judicial and Bar Council for re-nomination to the same positions.

IT IS SO ORDERED.

Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima and Pardo, JJ., concur.

Martinez, J., on official leave.