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ARTURO M. DE CASTRO, vs.

JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL -


ARROYO
G.R. No. 191002 March 17, 2010
Facts:
The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the
coming presidential elections on May 10, 2010. Petitioners De Castro and Peralta filed the instant special civil actions
for certiorari and mandamus to compel the JBC to submit a list of at least three nominees for the position of the Next
Chief Justice. On the other hand, petitioner Soriano filed a petition for prohibition to prevent JBC from conducting its
nomination proceedings for the position of the Chief Justice.
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."
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, Juistice Nachuar and Velasco declined the
nomination.
Issue:
Whether or not the appointment is prohibited by the provision against midnight appointments.
Held:
No. 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.
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.
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.
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.
Intent of the Constitutional Commission
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"
Moreover, the usage in Section 4(1), Article VIII of the word shall - an imperative, operating to impose a duty
that may be enforced - 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.
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. 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.
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.
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. 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.
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.
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.
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, 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. The letter and spirit of the Constitution safeguard that
independence.
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.
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. 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.
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:
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.
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.

April 20, 2010
Motion for Reconsideration

Second: Some intervenors are grossly misleading the public by their insistence that the Constitutional Commission
extended to the Judiciary the ban on presidential appointments during the period stated in Section 15, Article VII.
The records of the Constitutional Commission show that Commissioner Hilario G. Davide, Jr. had proposed
to include judges and justices related to the President within the fourth civil degree of consanguinity or affinity among
the persons whom the President might not appoint during his or her tenure. In the end, however, Commissioner
Davide, Jr. withdrew the proposal to include the Judiciary in Section 13, Article VII (t)o avoid any further
complication,

Last: The movants take the majority to task for holding that Section 15, Article VII does not apply to appointments in
the Judiciary. They aver that the Court either ignored or refused to apply many principles of statutory construction.
For one, the movants, disregarding the absence from Section 15, Article VII of the express extension of the
ban on appointments to the Judiciary, insist that the ban applied to the Judiciary under the principle of verba legis.
That is self-contradiction at its worst.
Another instance is the movants unhesitating willingness to read into Section 4(1) and Section 9, both of
Article VIII, the express applicability of the ban under Section 15, Article VII during the period provided therein,
despite the silence of said provisions thereon. Yet, construction cannot supply the omission, for doing so would
generally constitute an encroachment upon the field of the Constitutional Commission. Thus, the decision of March
17, 2010 has fittingly observed:

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
Presidents or Acting Presidents term does not refer to the Members of the Supreme Court.