EN BANC
Agenda for April 20, 2010
Item No. 43
G.R. No. 191002 Arturo
M. De Castro v. Judicial and Bar Council, and President Gloria Macapagal Arroyo
G.R. No. 191032 Jaime N. Soriano v. Judicial and Bar
Council
G.R. No. 191057 Philippine Constitution
Association v. Judicial and Bar Council
A.M. No. 10-2-5-SC In
Re: Applicability of
Section 15, Article VII of the Constitution to Appointments to the
Judiciary
G.R. No. 191149 John G. Peralta v. Judicial and Bar
Council
G.R. No. 191342 Atty. Amador
Z. Tolentino, Jr. (IBP Governor-Southern
G.R. No. 191420 Philippine Bar
Association, Inc. v.
Judicial and Bar Council and Her Excellency
Gloria Macapagal-Arroyo
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DISSENTING OPINION
CARPIO MORALES, J.:
No compelling reason exists for the Court to deny a
reconsideration of the assailed Decision.
The various motions for reconsideration raise hollering substantial
arguments and legitimately nagging questions which the Court must meet head on.
If this Court is to deserve or
preserve its revered place not just in the hierarchy but also in history,
passion for reason demands the issuance of an extended and extensive resolution
that confronts the ramifications and repercussions of its assailed Decision. Only then can it offer an illumination that
any self-respecting student of the law clamors and any adherent of the law
deserves. Otherwise, it takes the risk
of reeking of an objectionable air of supreme judicial arrogance.
It is thus imperative to settle the
following issues and concerns:
Whether the
incumbent President is constitutionally proscribed from appointing the
successor of Chief Justice Reynato S. Puno upon his retirement on May 17, 2010
until the ban ends at 12:00 noon of June 30, 2010
1. In
interpreting the subject constitutional provisions, the Decision disregarded
established canons of statutory construction. Without explaining the inapplicability of
each of the relevant rules, the Decision immediately placed premium on the
arrangement and ordering of provisions, one of the weakest tools of
construction, to arrive at its conclusion.
2. In reversing Valenzuela,
the Decision held that the Valenzuela dictum did not firmly rest on
ConCom deliberations, yet it did not offer to cite a material ConCom
deliberation. It instead opted to
rely on the memory of Justice Florenz
Regalado which incidentally mentioned only the “Court of Appeals.” The Decision’s conclusion must rest on the
strength of its own favorable Concom deliberation, none of which to date has
been cited.
3.
Instead of choosing
which constitutional provision carves out an exception from the other
provision, the most legally feasible interpretation (in the limited cases of
temporary physical or legal impossibility of compliance, as expounded in my
Dissenting Opinion) is to consider the appointments ban or other substantial
obstacle as a temporary impossibility which excuses or releases the
constitutional obligation of the Office of the President for the duration of
the ban or obstacle.
In view of the temporary nature of the circumstance causing
the impossibility of performance, the outgoing President is released from
non-fulfillment of the obligation to appoint, and the duty devolves upon the
new President. The delay in the fulfillment
of the obligation becomes excusable, since the law cannot exact compliance with
what is impossible. The 90-day period
within which to appoint a member of the Court is thus suspended and the period
could only start or resume to run when the temporary obstacle disappears (i.e.,
after the period of the appointments ban; when there is already a quorum in the
JBC; or when there is already at least three applicants).
Whether the
Judicial and Bar Council is obliged to submit to the President the shortlist of
nominees for the position of Chief Justice (or Justice of this Court) on or before
the occurrence of the vacancy.
1. The ruling in
the Decision that obligates the JBC to submit the shortlist to the President on
or before the occurrence of the vacancy in the Court runs counter to the
Concom deliberations which explain that the 90-day period is allotted for both the nomination by the JBC and the
appointment by the President. In the
move to increase the period to 90 days, Commissioner Romulo stated that “[t]he
sense of the Committee is that 60 days is awfully short and that the [Judicial
and Bar] Council, as well as the President, may have difficulties with that.”
2. To require the
JBC to submit to the President a shortlist of nominees on or before the
occurrence of vacancy in the Court leads to preposterous results. It
bears reiterating that the requirement is absurd when, inter alia, the
vacancy is occasioned by the death of a member of the Court, in which case the
JBC could never anticipate the death of a Justice, and could never submit a
list to the President on or before the occurrence of vacancy.
3. The express
allowance in the Constitution of a 90-day period of vacancy in the membership
of the Court rebuts any public policy argument on avoiding a vacuum of
even a single day without a duly appointed Chief Justice. Moreover, as pointed out in my Dissenting
Opinion, the practice of having an acting Chief Justice in the interregnum is
provided for by law, confirmed by tradition, and settled by jurisprudence to be
an internal matter.
The Resolution
of the majority, in denying the present Motions for Reconsideration, failed to rebut
the foregoing crucial matters.
I, therefore, maintain
my dissent and vote to GRANT the Motions for Reconsideration of the Decision of
March 17, 2010 insofar as it holds that the incumbent President is not
constitutionally proscribed from appointing the successor of Chief Justice
Reynato S. Puno upon his retirement on May 17, 2010 until the ban ends at 12:00
noon of June 30, 2010 and that the Judicial and Bar Council is obliged to
submit to the President the shortlist of nominees for the position of Chief
Justice on or before May 17, 2010.
CONCHITA CARPIO MORALES
Associate Justice