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De Castro v Judicial and Bar Council

De Castro v Judicial and Bar Council

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sRepublic of the Philippines
SUPREME COURT
 ManilaEN BANC
G.R. No. 191002 : March 17, 2010
 
ARTURO M. DE CASTRO,
 
Petitioner 
,
vs.
J
UDICIAL AND BAR COUNCIL (
J
BC) and PRESIDENT GLORIA MACAPAGAL -ARROYO,
 
R
espondents
.x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191032
 
J
AIME N. SORIANO,
 
Petitioner 
,
vs.
J
UDICIAL AND BAR COUNCIL (
J
BC),
 
R
espondent 
.x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191057
 
PHILIPPINE CONSTITUTION ASSOCIATION(PHILCONSA),
 
Petitioner 
,
vs.
J
UDICIAL AND BAR COUNCIL(
J
BC),
R
espondent 
.x - - - - - - - - - - - - - - - - - - - - - - -x
A.M. No. 10-2-5-SC
 
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THECONSTITUTION TO APPOINTMENTS TO THE
J
UDICIARY,ESTELITO P. MENDOZA,
 
Petitioner 
,
 x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191149
 
J
OHN G. PERALTA,
 
Petitioner 
,
vs.
J
UDICIAL AND BAR COUNCIL (
J
BC).
 
R
espondent 
.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM;ALFONSO V. TAN,
J
R.; NATIONAL UNION OF PEOPLE'SLAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF THEPHILIPPINES-DAVAO DEL SUR CHAPTER, represented by itsImmediate Past President, ATTY. ISRAELITO P. TORREON,and the latter in his own personal capacity as a MEMBER of the PHILIPPINE BAR; MITCHELL
J
OHN L. BOISER; BAGONGALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P.ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES,
J
R.; CONFEDERATION FOR UNITY, RECOGNITION ANDADVANCE-MENT OF GOVERNMENT EMPLOYEES (COURAGE)CHAIRMAN FERDINAND GAITE; KALIPUNAN NG DAMAYANGMAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIAARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN NGSAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN)CHAIRMAN KEN LEONARD RAMOS; TAYO ANG PAG-ASACONVENOR ALVIN PETERS; LEAGUE OF FILIPINO STUDENTS(LFS) CHAIRMAN
J
AMES MARK TERRY LACUANAN RIDON;NATIONAL UNION OF STUDENTS OF THE PHILIPPINES(NUSP) CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORSGUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VI
J
AEALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF THEPHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELAGUEVARRA; WALDEN F. BELLO and LORETTA ANN P.ROSALES; WOMEN TRIAL LAWYERS ORGANIZATION OF THEPHILIPPINES, represented by YOLANDA QUISUMBING-
J
AVELLANA; BELLEZA ALO
J
ADO DEMAISIP; TERESITAGANDIONCO-OLEDAN; MA. VERENA KASILAG-VILLANUEVA;MARILYN STA. ROMANA; LEONILA DE
J
ESUS; andGUINEVERE DE LEON.
ntervenors
.x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191342
 
ATTY. AMADOR Z. TOLENTINO,
J
R., (IBP Governor-SouthernLuzon), and ATTY. ROLAND B. INTING (IBP
Governor-EasternVisayas)
,
 
Petitioners
,
vs.
J
UDICIAL AND BAR COUNCIL(
J
BC),
 
R
espondent 
.x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191420
 
PHILIPPINE BAR ASSOCIATION, INC.,
 
Petitioner 
,
 vs.
J
UDICIAL AND BAR COUNCIL and HER EXCELLENCYGLORIA MACAPAGAL-ARROYO,
 
R
espondents
.
D E C I S I O N
 
BERSAMIN,
 J.:
 
SEPARATE OPINION:
 
NACHURA,
 J.
:BRION,
 J.
:
 
D
 ISSENTING OPINION 
:
 
CARPIO MORALES,
 J.
:
 
ON 
CU 
RRING OPINION:
 
ABAD,
 J.
:
 The compulsory retirement of Chief Justice Reynato S. Puno byMay 17
,
2010 occurs just days after the coming presidentialelections on May 10
,
2010. Even before the event actuallyhappens
,
it is giving rise to many legal dilemmas. May theincumbent President appoint his successor
,
considering thatSection 15
,
Article VII (Executive Department) of the Constitutionprohibits the President or Acting President from makingappointments within two months immediately before the nextpresidential elections and up to the end of his term
,
excepttemporary appointments to executive positions when continuedvacancies therein will prejudice public service or endanger publicsafety? What is the relevance of Section 4 (1)
,
Article VIII (JudicialDepartment) of the Constitution
,
which provides that any vacancyin the Supreme Court shall be filled within 90 days from theoccurrence thereof 
,
to the matter of the appointment of hissuccessor? May the Judicial and Bar Council (JBC) resume theprocess of screening the candidates nominated or being consideredto succeed Chief Justice Puno
,
and submit the list of nominees tothe incumbent President even during the period of the prohibitionunder Section 15
,
Article VII? Does mandamus lie to compel thesubmission of the shortlist of nominees by the JBC?Precís of the Consolidated CasesPetitioners Arturo M. De Castro and John G. Peralta respectivelycommenced G.R. No. 191002
1
cÐacÐalÄ«w and G.R. No.191149
2
cÐacÐalÄ«w as special civil actions for certiorari andmandamus
,
praying that the JBC be compelled to submit to theincumbent President the list of at least three nominees for theposition of the next Chief Justice.In G.R. No. 191032
,
3
cÐacÐalÄ«w Jaime N. Soriano
,
via hispetition for prohibition
,
proposes to prevent the JBC fromconducting its search
,
selection and nomination proceedings forthe position of Chief Justice.In G.R. No. 191057
,
a special civil action formandamus
,
4
cÐacÐalÄ«w the Philippine Constitution Association(PHILCONSA) wants the JBC to submit its list of nominees for theposition of Chief Justice to be vacated by Chief Justice Puno uponhis retirement on May 17
,
2010
,
because the incumbent Presidentis not covered by the prohibition that applies only to appointmentsin the Executive Department.In Administrative Matter No. 10-2-5-SC
,
5
cÐacÐalÄ«w petitionerEstelito M. Mendoza
,
a former Solicitor General
,
seeks a rulingfrom 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
cÐacÐalÄ«w which the Court consolidatedon March 9
,
2010 with the petitions earlier filed
,
petitionersAmador Z. Tolentino
,
Jr. and Roland B. Inting
,
Integrated Bar of the Philippines (IBP) Governors for Southern Luzon and EasternVisayas
,
respectively
,
want to enjoin and restrain the JBC fromsubmitting a list of nominees for the position of Chief Justice to thePresident for appointment during the period provided for in Section15
,
Article VII.All the petitions now before the Court pose as the principal legalquestion whether the incumbent President can appoint thesuccessor of Chief Justice Puno upon his retirement. That questionis undoubtedly impressed with transcendental importance to theNation
,
because the appointment of the Chief Justice is anyPresidents most important appointment.A precedent frequently cited is In Re Appointments Dated March30
,
1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallartaas Judges of the Regional Trial Court of Branch
6
2
,
Bago City and
 
of Branch 24
,
Cabanatuan City
,
respectively(Valenzuela)
,
7
cÐacÐalÄ«w by which the Court held that Section15
,
Article VII prohibited the exercise by the President of thepower to appoint to judicial positions during the period thereinfixed.In G.R. No. 191002
,
De Castro submits that the conflictingopinions on the issue expressed by legal luminaries one side holdsthat the incumbent President is prohibited from makingappointments within two months immediately before the comingpresidential elections and until the end of her term of office asPresident on June 30
,
2010
,
while the other insists that theprohibition applies only to appointments to executive positions thatmay influence the election and
,
anyway
,
paramount nationalinterest justifies the appointment of a Chief Justice during theelection ban has impelled the JBC to defer the decision to whom tosend its list of at least three nominees
,
whether to the incumbentPresident or to her successor.
8
cÐacÐalÄ«w He opines that theJBC is thereby arrogating unto itself "the judicial function that isnot conferred upon it by the Constitution
,
" which has limited it tothe task of recommending appointees to the Judiciary
,
but has notempowered it to "finally resolve constitutional questions
,
which isthe power vested only in the Supreme Court under theConstitution." As such
,
he contends that the JBC acted with graveabuse of discretion in deferring the submission of the list of nominees to the President; and that a "final and definitiveresolution of the constitutional questions raised above woulddiffuse (sic) the tension in the legal community that would go along way to keep and maintain stability in the judiciary and thepolitical system."
9
 In G.R. No. 191032
,
Soriano offers the view that the JBCcommitted a grave abuse of discretion amounting to lack or excessof its jurisdiction when it resolved unanimously on January 18
,
 2010 to open the search
,
nomination
,
and selection process for theposition of Chief Justice to succeed Chief Justice Puno
,
because theappointing authority for the position of Chief Justice is theSupreme Court itself 
,
the Presidents authority being limited to theappointment of the Members of the Supreme Court. Hence
,
theJBC should not intervene in the process
,
unless a nominee is notyet a Member of the Supreme Court.
10
 For its part
,
PHILCONSA observes in its petition in G.R. No. 191057that "unorthodox and exceptional circumstances spawned by thediscordant interpretations
,
due perhaps to a perfunctoryunderstanding
,
of Sec. 15
,
Art. VII in relation to Secs. 4(1)
,
8(5)and 9
,
Art. VIII of the Constitution" have bred "a frenziedinflammatory legal debate on the constitutional provisionsmentioned that has divided the bench and the bar and the generalpublic as well
,
because of its dimensional impact to the nation andthe people
,
" thereby fashioning "transcendental questions or issuesaffecting the JBCs proper exercise of its "principal function of recommending appointees to the Judiciary" by submitting only tothe President (not to the next President) "a list of at least threenominees prepared by the Judicial and Bar Council for everyvacancy" from which the members of the Supreme Court and judges of the lower courts may beappointed."
11
cÐacÐalÄ«w PHILCONSA further believes andsubmits that now is the time to revisit and review Valenzuela
,
the"strange and exotic Decision of the Court en banc."
12
 Peralta states in his petition in G.R. No. 191149 that mandamuscan 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 JusticeReynato S. Puno
,
in compliance with its mandated duty under theConstitution" in the event that the Court resolves that thePresident can appoint a Chief Justice even during the election banunder Section 15
,
Article VII of the Constitution.
13
 The petitioners in G.R. No. 191342 insist that there is an actualcontroversy
,
considering that the "JBC has initiated the process of receiving applications for the position of Chief Justice and has infact begun the evaluation process for the applications to theposition
,
" and "is perilously near completing the nominationprocess and coming up with a list of nominees for submission tothe President
,
entering into the period of the ban on midnightappointments on March 10
,
2010
,
" which "only highlights thepressing and compelling need for a writ of prohibition to enjoinsuch alleged ministerial function of submitting the list
,
especially if it will be cone within the period of the ban on midnightappointments."
14
cÐacÐalÄ«wAntecedentsThese cases trace their genesis to the controversy that has arisenfrom the forthcoming compulsory retirement of Chief Justice Punoon 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 occurrencethereof" from a "list of at least three nominees prepared by theJudicial and Bar Council for every vacancy. "On December 22
,
2009
,
Congressman Matias V. Defensor
,
an exofficio member of the JBC
,
addressed a letter to the JBC
,
 requesting that the process for nominations to the office of theChief Justice be commenced immediately.In its January 18
,
2010 meeting en banc
,
therefore
,
the JBCpassed a resolution
,
15
which reads:The JBC
,
in its en banc meeting of January 18
,
2010
,
unanimouslyagreed to start the process of filling up the position of Chief Justiceto be vacated on May 17
,
2010 upon the retirement of theincumbent Chief Justice Honorable Reynato S. Puno.It will publish the opening of the position for applications orrecommendations; deliberate on the list of candidates; publish thenames of candidates; accept comments on or opposition to theapplications; conduct public interviews of candidates; and preparethe shortlist of candidates.As to the time to submit this shortlist to the proper appointingauthority
,
in the light of the Constitution
,
existing laws and jurisprudence
,
the JBC welcomes and will consider all views on thematter.18 January 2010.(sgd.)MA. LUISA D. VILLARAMAClerk of Court & Ex-Officio SecretaryJudicial and Bar CouncilAs a result
,
the JBC opened the position of Chief Justice forapplication or recommendation
,
and published for that purpose itsannouncement dated January 20
,
2010
,
1
6
cÐacÐalÄ«w
viz 
:The Judicial and Bar Council (JBC) announces the opening forapplication or recommendation
,
of the position of CHIEF JUSTICEOF THE SUPREME COURT
,
which will be vacated on 17 May 2010upon the retirement of the incumbent Chief Justice
,
HON.REYNATO S. PUNO.Applications or recommendations for this position must besubmitted not later than 4 February 2010 (Thursday) to the JBCSecretariat xxx:The announcement was published on January 20
,
2010 in thePhilippine Daily Inquirer and The Philippine Star.
17
cÐacÐalÄ«wConformably with its existing practice
,
the JBC "automaticallyconsidered" for the position of Chief Justice the five most senior of the Associate Justices of the Court
,
namely: Associate JusticeAntonio T. Carpio; Associate Justice Renato C. Corona; AssociateJustice Conchita Carpio Morales; Associate Justice Presbitero J.Velasco
,
Jr.; and Associate Justice Antonio Eduardo B. Nachura.However
,
the last two declined their nomination through lettersdated January 18
,
2010 and January 25
,
2010
,
respectively.
18
 Others either applied or were nominated. Victor Fernandez
,
theretired Deputy Ombudsman for Luzon
,
applied
,
but later formallywithdrew his name from consideration through his letter datedFebruary 8
,
2010. Candidates who accepted their nominationswithout conditions were Associate Justice Renato C. Corona;Associate Justice Teresita J. Leonardo-De Castro; Associate JusticeArturo D. Brion; and Associate Justice Edilberto G. Sandoval(Sandiganbayan). Candidates who accepted their nominations withconditions were Associate Justice Antonio T. Carpio and AssociateJustice Conchita Carpio Morales.
19
cÐacÐalÄ«w Declining theirnominations were Atty. Henry Villarica (via telephone conversationwith the Executive Officer of the JBC on February 5
,
2010) andAtty. Gregorio M. Batiller
,
Jr. (via telephone conversation with theExecutive Officer of the JBC on February 8
,
2010).
20
cÐacÐalÄ«wThe JBC excluded from consideration former RTC Judge FlorentinoFloro (for failure to meet the standards set by the JBC rules); andSpecial Prosecutor Dennis Villa-Ignacio of the Office of theOmbudsman (due to cases pending in the Office of theOmbudsman).
21
 In its meeting of February 8
,
2010
,
the JBC resolved to proceed tothe next step of announcing the names of the following candidatesto invite the public to file their sworn complaint
,
written report
,
oropposition
,
if any
,
not later than February 22
,
2010
,
to wit:Associate Justice Carpio
,
Associate Justice Corona
,
AssociateJustice Carpio Morales
,
Associate Justice Leonardo-De Castro
,
 Associate Justice Brion
,
and Associate Justice Sandoval. Theannouncement came out in the Philippine Daily Inquirer and ThePhilippine Star issues of February 13
,
2010.
22
cÐacÐalÄ«wIssuesAlthough it has already begun the process for the filling of theposition 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 usbeing yet unresolved. In the meanwhile
,
time is marching in quickstep towards May 17
,
2010 when the vacancy occurs upon theretirement of Chief Justice Puno.The actions of the JBC have sparked a vigorous debate not onlyamong legal luminaries
,
but also among non-legal quarters
,
andbrought out highly disparate opinions on whether the incumbentPresident can appoint the next Chief Justice or not. PetitionerMendoza notes that in Valenzuela
,
which involved theappointments of two judges of the Regional Trial Court
,
the Courtaddressed this issue now before us as an administrative matter "toavoid any possible polemics concerning the matter
,
" but he opinesthat the polemics leading to Valenzuela "would be miniscule [sic]compared to the "polemics" that have now erupted in regard to thecurrent controversy
,
" and that unless "put to a halt
,
and this mayonly be achieved by a ruling from the Court
,
the integrity of theprocess and the credibility of whoever is appointed to the positionof Chief Justice
,
may irreparably be impaired."
23
cÐacÐalÄ«wAccordingly
,
we reframe the issues as submitted by each petitionerin the order of the chronological filing of their petitions.
G.R. No. 191002
 a. Does the JBC have the power and authority to resolvethe constitutional question of whether the incumbentPresident can appoint a Chief Justice during the electionban period?b. Does the incumbent President have the power andauthority to appoint during the election ban thesuccessor of Chief Justice Puno when he vacates theposition of Chief Justice on his retirement on May 17
,
 2010?
G.R. No. 191032
 a. Is the power to appoint the Chief Justice vested in theSupreme Court en banc?
G.R. No. 191057
 a. Is the constitutional prohibition against appointmentunder Section 15
,
Article VII of the Constitutionapplicable only to positions in the ExecutiveDepartment?b. Assuming that the prohibition under Section 15
,
 Article VII of the Constitution also applies to members of the Judiciary
,
may such appointments be exceptedbecause they are impressed with public interest or aredemanded 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 ornot to include and submit the names of nominees whomanifested interest to be nominated for the position of Chief Justice on the understanding that his/hernomination will be submitted to the next President inview of the prohibition against presidential appointmentsfrom March 11
,
2010 until June 30
,
2010?
A. M. No. 10-2-5-SC
 a. Does Section 15
,
Article VII of the Constitution applyto appointments to positions in the Judiciary underSection 9
,
Article VIII of the Constitution?b. May President Gloria Macapagal-Arroyo makeappointments 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 thesubmission of the short list to President GloriaMacapagal-Arroyo?
G.R. No. 191342
 a. Does the JBC have the authority to submit the list of nominees to the incumbent President withoutcommitting a grave violation of the Constitution and jurisprudence prohibiting the incumbent President frommaking midnight appointments two months immediatelypreceding the next presidential elections until the end of her term?b. Is any act performed by the JBC
,
including the vettingof the candidates for the position of Chief Justice
,
 constitutionally invalid in view of the JBC's illegalcomposition allowing each member from the Senate andthe House of Representatives to have one vote each?On February 1
6,
2010
,
the Court directed the JBC and the Office of the Solicitor General (OSG) to comment on the consolidatedpetitions
,
except that filed in G.R. No. 191342.On February 2
6,
2010
,
the JBC submitted its comment
,
reportingtherein that the next stage of the process for the selection of thenominees for the position of Chief Justice would be the publicinterview of the candidates and the preparation of the short list of candidates
,
"including the interview of the constitutional experts
,
 as may be needed."
24
cÐacÐalÄ«w It stated:
25
cÐacÐalÄ«wLikewise
,
the JBC has yet to take a position on when to submit theshortlist to the proper appointing authority
,
in light of Section 4(1)
,
Article VIII of the Constitution
,
which provides that vacancy inthe Supreme Court shall be filled within ninety (90) days from theoccurrence thereof 
,
Section 15
,
Article VII of the Constitutionconcerning the ban on Presidential appointments "two (2) monthsimmediately before the next presidential elections and up to theend of his term" and Section 2
6
1 (g)
,
Article XXII of the OmnibusElection 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 theseconsolidated Petitions and Administrative Matter.On February 2
6,
2010
,
the OSG also submitted its comment
,
 essentially stating that the incumbent President can appoint thesuccessor of Chief Justice Puno upon his retirement by May 17
,
 2010.The OSG insists that: (a) a writ of prohibition cannot issue toprevent the JBC from performing its principal function under theConstitution to recommend appointees in the Judiciary; (b) theJBC's function to recommend is a "continuing process
,
" which doesnot begin with each vacancy or end with each nomination
,
becausethe goal is "to submit the list of nominees to Malacañang on thevery day the vacancy arises";
2
6
cÐacÐalÄ«w the JBC was thusacting within its jurisdiction when it commenced and set in motionthe process of selecting the nominees to be submitted to thePresident for the position of Chief Justice to be vacated by Chief Justice Puno;
27
cÐacÐalÄ«w (c) petitioner Soriano's theory that itis the Supreme Court
,
not the President
,
who has the power toappoint the Chief Justice
,
is incorrect
,
and proceeds from hismisinterpretation of the phrase "members of the Supreme Court"found in Section 9
,
Article VIII of the Constitution as referring onlyto the Associate Justices
,
to the exclusion of the Chief Justice;
28
cÐacÐalÄ«w (d) a writ of mandamus can issue tocompel the JBC to submit the list of nominees to the President
,
 considering that its duty to prepare the list of at least threenominees is unqualified
,
and the submission of the list is aministerial act that the JBC is mandated to perform under theConstitution; as such
,
the JBC
,
the nature of whose principalfunction is executive
,
is not vested with the power to resolve whohas the authority to appoint the next Chief Justice and
,
therefore
,
 has no discretion to withhold the list from thePresident;
29
cÐacÐalÄ«w and (e) a writ of mandamus cannotissue to compel the JBC to include or exclude particular candidatesas nominees
,
considering that there is no imperative duty on itspart to include in or exclude from the list particular individuals
,
 but
,
on the contrary
,
the JBC's determination of who it nominatesto the President is an exercise of a discretionaryduty.
30
cÐacÐalÄ«wThe OSG contends that the incumbent President may appoint thenext Chief Justice
,
because the prohibition under Section 15
,
 Article VII of the Constitution does not apply to appointments inthe Supreme Court. It argues that any vacancy in the SupremeCourt must be filled within 90 days from its occurrence
,
pursuantto Section 4(1)
,
Article VIII of theConstitution;
31
cÐacÐalÄ«w that in their deliberations on themandatory period for the appointment of Supreme Court Justices
,
 the framers neither mentioned nor referred to the ban againstmidnight appointments
,
or its effects on such period
,
or viceversa;
32
cÐacÐalÄ«w that had the framers intended theprohibition to apply to Supreme Court appointments
,
they couldhave easily expressly stated so in the Constitution
,
which explainswhy the prohibition found in Article VII (Executive Department)was not written in Article VIII (Judicial Department); and that theframers also incorporated in Article VIII ample restrictions orlimitations on the President's power to appoint members of theSupreme Court to ensure its independence from "politicalvicissitudes" and its "insulation from politicalpressures
,
"
33
cÐacÐalÄ«w such as stringent qualifications for thepositions
,
the establishment of the JBC
,
the specified period withinwhich the President shall appoint a Supreme Court Justice.

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