EN
BANC
G.R. No.
191002 -- ARTURO M. DE CASTRO, Petitioner, versus JUDICIAL AND
BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL-ARROYO, Respondents.
G.R. No.
191032 -- JAIME N. SORIANO, Petitioner, versus JUDICIAL AND
BAR COUNCIL (JBC), Respondent.
G.R. No.
191057 -- PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner, versus JUDICIAL AND
BAR COUNCIL (JBC), Respondent.
A.M. No.
10-2-5-SC -- IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE
CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY,
ESTELITO P. MENDOZA, Petitioner.
G.R. No.
191149 -- JOHN G. PERALTA, Petitioner, versus JUDICIAL AND
BAR COUNCIL (JBC), Respondent.
G.R. No.
191342 -- ATTY. AMADOR Z. TOLENTINO, JR., ET AL., Petitioners, versus JUDICIAL AND
BAR COUNCIL (JBC), Respondent.
G.R. No.
191420 -- PHILIPPINE BAR ASSOCIATION, INC., Petitioner, versus JUDICIAL AND
BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO, Respondents.
Promulgated:
March 17, 2010
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CONCURRING
OPINION
ABAD, J.:
Chief Justice Reynato S. Puno will retire on May 17,
2010. Article VIII, Section 9[1] of
the 1987 Constitution requires the President to choose his successor from at
least three nominees of the Judicial and Bar Council (JBC). On January 18, 2010 the JBC passed a
unanimous resolution[2] to start
the process of filling up the anticipated vacancy. Indeed, it invited applications and nominations
for the position through newspapers, later announced the names of candidates to
it, and finally received endorsements in favor of and oppositions against such
candidates.
Ordinarily, the JBC would already be holding public
interviews of candidates to the office to be followed by a deliberation and the
eventual submission of a shortlist of nominees to the President. The Constitution provides that any vacancy in
the Supreme Court “shall be filled within ninety days” from its occurrence.[3] Since the position of Chief Justice will be
vacant on May 17, 2010 when Chief Justice Puno shall have retired, the
President has to fill up the vacancy during the period May 17 to August 15,
2010.
But by some unforeseen happenstance, that vacancy (May
18) will occur during the period of the midnight appointments ban (March 10 to
June 30), a ban intended to prevent an outgoing president from buying votes
using such appointments or robbing the incoming president of the opportunity to
fill up important positions with people he will be working with. Article VII, Section 15, of the Constitution
prohibits the outgoing President from making appointments “two months
immediately before the next presidential elections and up to the end of his
term,” except temporary appointments in the interest of public service or
public safety.[4] The midnight appointments ban this year is in
force from March 10 (two months before the elections) to June 30 (the end of
the incumbent President’s term), a period of 112 days.
Issues to be addressed
Quite ably, the majority opinion already addressed the
several issues raised by the petitions and the oppositions to them. I join that opinion and would add a few
thoughts on what I believe to be the key issues in this case, namely:
1. Whether
or not the case presents an actual controversy that is ripe for this Court’s
adjudication; and
2. Whether
or not the Constitutional ban on midnight appointments applies to the
judiciary.
Discussion
One. Invoking the
fundamental rule that judicial power is the duty of the courts of justice to
settle “actual controversies involving rights which are legally demandable and
enforceable,” the National Union of People’s Lawyers (NUPL) claims that no
actual controversy exists in this case as to warrant judicial determination of
the issue of whether or not the Constitutional ban on midnight appointment
applies to the judiciary since the JBC has not as yet prepared a final list of its
nominees to current vacancies in the courts.
BAYAN, COURAGE, KADAMAY, LFS, NUSTP, CEGP, SCMP, and BAYAN claim that what
the petitioners seek is a mere advisory opinion from the Court, something that
it has no power to give.
The Constitution provides that judicial power is the
duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable.[5] The court will not act on an action for
damages for a slap on the plaintiff’s face if the defendant is still to deliver
that slap. The law must have established
a right which has in fact been violated.
Here, the Constitution imposes on the JBC the duty to
recommend to the President those whom he can appoint to the judiciary when a
vacancy occurs.[6] In the case of a vacancy in the Supreme
Court, it is implicit that the JBC must submit a list of at least three nominees
to the President on time to enable him to fulfill his duty to fill up the
vacancy within 90 days after it occurs.[7] Those who have an interest in the fulfillment
of this duty has the right to insist that it be done.
But the JBC appears reluctant or unwilling to perform
its above duty in the case of the forthcoming May 17, 2010 vacancy in the
office of the Chief Justice. It expressed
a desire to determine, initially, from views submitted to it by others and,
later, from what the Court might provide it by way of guidance, whether it can
submit its list of nominees to the incumbent President during the ban on
midnight appointments that sets in on March 10.
Indeed, the JBC said in its resolution of January 18, 2010 that, while
it would start the selection process, it was yet to determine when and to whom to
submit its shortlist of nominees. It saw
an apparent conflict between the provisions of Section 4(1) of Article VIII (the
ban on midnight appointments) and Section 15 of Article VII (the need to fill
up the vacancy within 90 days of its occurrence) of the 1987 Constitution.
Eventually, after taking some steps in the selection
process, the JBC held the process in abeyance, unable to decide as yet when and
to whom it will submit its list of nominees for the position that Chief Justice
Puno will vacate on May 17, 2010. Under
the circumstances, the controversy is already ripe for adjudication for, assuming
that the ban on midnight appointment does not apply to the judiciary as the
petitioners would have it, then the JBC’s suspension of its selection process
would constitute a violation of its duty under the Constitution to carry on
with such process until it is able to submit the desired list to the incumbent
President. If my subdivision neighbor
begins constructing a shed in his yard and tells me that he has ordered 20 pigs
to raise there, I will not wait till the pigs arrive and defecate before I
bring an action to abate a nuisance.
As mandated by the Constitution, the incumbent
President should be able to fill up the vacancy within 90 days of its
occurrence. This presupposes that the incumbent President should have the list
on or before May 17, the day the vacancy occurs, so she can comply with her
duty under the Constitution to make the appointment within the 90-day period
provided by it. Of course, the
circumstances is such that the period for appointing the Chief Justice’s replacement
will span the tenure of the incumbent President (for 44 days) and her successor
(for 46 days), but it is the incumbent’s call whether to exercise the power or
pass it on.
Again, assuming as correct petitioners’ view that the
ban on midnight appointments does not apply to the judiciary, the JBC’s
suspension of its selection process places it in default, given its above duty
in regard to the submission of its list of nominees to the President within a
time constraint. Under the same assumption,
moreover, the petitioner citizens and members of the bar would have a
demandable right or interest in having the JBC proceed with its selection
process and submit its list of nominees in time for the incumbent President or
her successor to fill up the vacancy within the period required by the
Constitution.
Alternatively, assuming that an actual controversy has
not yet developed as to warrant action on the petitions filed in this case, the
Court has the authority, as an incident of its power of supervision over the
JBC,[8] to
see to it that the JBC faithfully executes its duties as the Constitution
requires of it.
In its Resolution of January 18, 2010, the JBC
confesses uncertainty regarding when and to whom to submit its list of nominees
for the May 17, 2010 vacancy in the office of Chief Justice in view of the
apparently conflicting provisions of the Constitution. Further, in its comment in this case, the JBC
declared that it “will be guided by [the Court’s] decision in these
consolidated Petitions and Administrative Matter.” Consequently, as an incident of its
Constitutional duty to supervise the JBC, the Court can, to insure JBC’s faithful
compliance with the Constitution, resolve the issue of whether or not the ban
on midnight appointments applies to the judiciary.
Two. Citing “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,”[9] the
oppositors claim that the ban on midnight appointments applies to the
judiciary. After examining the reasons
for the two apparently conflicting provisions, the Court said that the need to
fill up vacancies in the judiciary within the period the Constitution provides
must yield to the ban on Presidential midnight appointments. The Court explained this ruling:
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.[10]
But the above assumes that the outgoing incumbent President
can make appointments in the judiciary during the period of the ban “to buy
votes” and commit “similar evils” like denying the incoming President the
opportunity to consider other appointees in the light of his new policies, a
point former President Diosdado Macapagal made in Aytona v. Castillo.[11]
The fact, however, is that while the President can freely
choose to appoint any person who meets the basic qualifications for a position
in the Executive Department, he does not have such freedom of choice when it
comes to appointments in the judiciary.
In the latter case, the Constitution provides in Section 9 of Article
VIII that the President can choose his appointee only from a JBC short list of its
nominees.
Sec. 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. x x x
This restriction on the President’s appointing power
is not a small matter.
First. The JBC from whose list of nominees the
President will make his appointment is under the supervision of the Supreme
Court itself. Indeed, it is headed by
the Chief Justice as its presiding officer.
The JBC is not a subordinate agency of the Executive Department; the
President has neither control nor supervision over it.
Second. The JBC makes its own vetting rules and
procedures. The Constitution of course
provides for the qualifications of members of the judiciary[12]
but this has not prevented the JBC from establishing grounds for disqualifying
candidates, such as the pendency of administrative or criminal cases against
them.
Third. The JBC announces any vacancy in the
judiciary in newspapers of large circulations.
Secret recruitment and trading for votes in the coming elections is out.
Fourth. Anyone who has the basic qualifications can
apply for a vacancy or be nominated to it.
Thus, the opportunity to be recommended by the JBC for appointment is
open or otherwise unrestricted.
Political connection is not a consideration that the JBC entertains in
short listing its nominees.
Fifth. The JBC invites the public to comment on or
submit opposition to the nomination of candidates to a vacancy. And it holds public hearings in which each
candidate is queried about his qualifications, affiliations, and other personal
circumstances.
Sixth. The names in the list submitted by the JBC to
the President are not negotiable. On
July 24, 2009 the Executive Secretary returned to JBC its list of six nominees
for two vacancies in the Court, requesting additional names that the incumbent
President can choose from. Obviously,
the President was unhappy with the names on the list. But the JBC declined the request, the
pertinent portion of which reads:
We wish to inform you that the six (6)
nominees of the JBC were chosen after a long and thorough selection
process. Among others, their public and
private track record, experience and possession of the required qualities of
competence, integrity, probity and independence were carefully studies and
considered by the JBC. They are all
highly qualified for the two (2) vacancies in the Supreme Court and indeed,
your letter of July 26, 2009 does not assail and hence, concedes the
qualification of the six (6) nominees.
With due respect, the JBC cannot acquiesce
to your request to expand the short list of nominees submitted to your
office. The decision whether to include
three or more than three name in the short list of the nominees exclusively
belongs to the JBC. It is one of the
important innovations in the 1987 Constitution designed to depoliticize
appointments in the Judiciary and promote its independence. This discretion given to the JBC is the
lynchpin of its autonomy and it cannot be compromised in the tiniest degree
without impairing the delicate check and balance in the appointment of members
of the Judiciary installed in our Constitution.
The JBC, voting unanimously, cannot therefore accede to your request in
light of the imperatives of the Constitution.
Thus,
the incumbent President was forced to choose from the few names on the list
that she had.
In reality, a President’s choice of Chief Justice is
in fact first a choice of the JBC before it is that of the President. Easily there should at least be 20,000
lawyers who are 40 years of age and have 15 years of law practice of some kind
who could qualify for Chief Justice. Yet,
the President can choose only from a list of three, four, or five lawyers that
the JBC draws up for him. Consequently,
the idea that the outgoing incumbent President can take advantage of her
appointment of a Chief Justice to buy votes in the coming elections is utterly
ridiculous. She has no control over the
JBC’s actions.
Further, the idea that the incoming President should
have the opportunity to choose a Chief Justice who will support his policies
does not also make sense. The Supreme
Court that the Chief Justice heads is not a support agency under the
President. One of the functions of the
Supreme Court is to provide a Constitutional check on abuses of the Executive
Department.
The proposition that a Chief Justice will always be
beholden to the President who appoints him is a myth. Former President Estrada appointed Chief Justice
Hilario G. Davide, Jr. who presided over his impeachment and administered the oath
to the incumbent President at the heels of EDSA II while President Estrada still
sat in Malacańang. Chief Justices
Artemio V. Panganiban and Reynato S. Puno voted against positions taken by the administration
of the incumbent President who appointed them both to their position. These Chief Justices like those before them were
first choices of the JBC before they were those of the Presidents
concerned.
I thus reiterate my concurrence with the main
decision.
ROBERTO
A. ABAD
Associate Justice
[1] Article VIII,
Sec. 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.
[2] http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf.
[3] Article VIII, 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
divisions of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence
thereof.
[4] Article VII,
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.
[5] Article VIII, Section 1, 1987 Constitution of
the
[6]
[7]
[8]
[9] 358 Phil. 896 (1998).
[10]
[11] 4 SCRA 1, 8 (1962).
[12] Section 7(1) and (3), Article VIII, 1987
Constitution of the