De Castro v.

Judicial and Bar Council

G.R. No. 191002, etc.
17 March 2010
J. Bersamin

Petitioners: Arturo M. De Castro, etc.

Respondents: Judicial and Bar Council (JBC) and President Gloria Macapagal-Arroyo, etc.
Summary:
These consolidated cases arise from the looming compulsory retirement of Chief Justice Puno after the May
2010 elections. As per the Constitution, the vacancy was to be filled within 90 days from occurrence thereof
from a list of nominees submitted by the JBC; however, the Constitution also prohibits the outgoing President
from making any appointments in the 2 months preceding the next presidential elections up to the end of his
term. The Court thus had to decide the seeming conflict between these two periods in the Constitution, holding
that the latter, which is the ban on midnight appointments in 15, Art. VII, does not apply to appointments to
the Judiciary. This is because (a) the records of the deliberations on the 1987 Constitution show that the framers
could not have intended for the prohibition to extend to the Judiciary; and (b) the limit on the prohibition, as
well as the establishment of the JBC, help insulate the Judiciary from political pressures.

Facts:
Seven days after the presidential election on 17 May 2010, Chief Justice Reynato Puno was set for
compulsory retirement. Under 4(1) in relation to 8, Art. VIII, the vacancy created by his retirement shall be
filled within 90 days from the occurrence thereof, and the new Chief Justice shall be chosen from a list of at
least three nominees prepared by the Judicial and Bar Council for every vacancy.
Thus, in December 2009, Congressman Matias Defensor, an ex officio member of the JBC, wrote to the
latter to request that the process for nominations to the office of Chief Justice be commenced immediately.
Consequently, the JBC unanimously passed a resolution in January 2010 to begin the nomination process.1
When the list of names was finalized, the JBC, instead of immediately submitting the list to the proper
appointing authority, withheld its submission, in view of 15, Art. VII, which bans presidential appointments in
the 2 months immediately preceding the next presidential elections, up to the end of his term. The JBC then
chose to defer to the decision of the Court regarding whether or not to submit the list to the incumbent
President (then Pres. Gloria Macapagal-Arroyo).
This is a consolidated case regarding the seeming conflict between the two provisions of the Constitution
above cited, specifically the 90 day period directed by Art. VIII, within which a new Chief Justice shall be
appointed, and the ban on presidential appointments embodied in Art. VII, which begins 2 months before the
presidential elections up to the end of his term.

issues
(1) [Main} Whether the prohibition under 15, Art. VII, applies to appointments to fill vacancies within the
Supreme Court or other appointments to the Judiciary. NO. The prohibition applies only to
appointments within the Executive, as demonstrated by the records of the Constitutional Commission.
The framers did not intend to have the prohibition apply to the Judiciary. This was, along with the
establishment of the JBC, helps insulate the Judiciary from political pressures.
(2) Whether the Constitution and the Judiciary Act of 1948 allow for the appointment of a Chief Justice in
an acting capacity. NO. 12 of the Judiciary Act, providing for an acting Chief Justice, applies only
to situations in which the new Chief Justice is not yet appointed, or in which the incumbent is unable to
perform the duties and powers of his office.

1 The nominees were the following:

(a) Associate Justice Antonio T. Carpio
(b) Associate Justice Renato C. Corona
(c) Associate Justice Conchita Carpio-Morales
(d) Associate Justice Teresita Leonardo-De Castro
(e) Associate Justice Arturo D. Brion
(f) Associate Justice Edilberto G. Sandoval of the Sandiganbayan
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 (3) Whether writ of mandamus lies to compel the JBC to begin the nomination process. NO. Mandamus
does not lie against the JBC in the exercise of its discretion, i.e. in the selection of nominees. It lies only
with regard to its ministerial duty, i.e. to submit the list of nominees to the President, and only in case
there has been unexplained delay.

ratio
(1) The prohibition under 15, Art. VII applies only to appointments within the Executive, and not to the
Judiciary.
4(1), Art. VIII, reads:
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.
Meanwhile, 15, Art. VII, states:
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 Court resolves this seeming conflict by concluding that the latter provision does not extend to
appointments in the Judiciary, for the following reasons:
(a) The records of the Constitutional Commissions deliberations show that the framers had structured our
Constitution as it appears today in order to recognize the principle of separation of powers. Art. VII is
dedicated to the Executive Department; Art. VIII, to the Judicial Department. Had the framers intended
to extend the prohibition in 15, Art. VII to the Judicial Department, they could have explicitly done so.
The fact that such specification was not made only strengthens the conclusion that the prohibition does
not refer to Members of the Supreme Court.
The exchanges between the framers during the Con Comm deliberations further show that the 90-
day period in 4(1), Art. VIII is a true mandate2 for the President. Its language (using shall) indicates an
imperative, imposing a duty upon the President to fill the vacancy within 90 days.
In ruling thus, the Court reversed In re Valenzuela, where it had previously decided that the
prohibition in 15, Art. VII also applies to the Judiciary.
(b) The Court also concluded that the prohibition does not apply to all other appointments in the Judiciary.
The Court explained that the prohibition in 15, Art. VII seeks to protect against two types of
appointmentsthe first, those made for buying votes, which constitutes an election offense, and the
second, those made for partisan considerations, or the so-called midnight appointments. Though the
midnight appointments in Aytona v. Castillo were invalidated by the Court, it recognized in that case
that there may be a need for appointments to important positions even after a new President were
proclaimed. Such appointments would be valid if they are made after careful consideration of the
appointees qualifications.
The JBC was established precisely to consider the qualifications of appointees, with its unhurried and
deliberate prior processing of candidates helping protect against midnight appointments. It was
created with the intention to depoliticize the Judiciary and eliminate the dangers of vote buying and
partisanship. The Commission of Appointments therefore no longer intervenes in judicial appointments.
This insulation was absent from the Aytona case.
(c) 15 appears between 14 and 16, both of which speak of the appointing powers of the President
with regard to members of the Executive Department. It is absurd to assume that the framers
deliberately situated 15 between 14 and 16 if they intended for it to cover all kinds of appointments,
instead of only those within the Executive, as is the coverage of the latter two provisions.
(d) Having the new President, instead of the outgoing incumbent, appoint the next Chief Justice cannot
ensure judicial independence, because the appointee can also become beholden to the appointing

2MR. 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.
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 authority. In contrast, appointment by the outgoing incumbent does not run the same risk, precisely
because PGMAs term will end by 30 June 2010.

(2) The appointment of an Acting Chief Justice is anathema to the framers intention that the position be
permanent.
12 of the Judiciary Act of 1948 provides:
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.
It must be kept in mind that the Judiciary Act was enacted undder the 1935 Constitution, when the Chief
Justice was still subject to the confirmation of the Commission on Appointments, and the confirmation process
could take longer than expected. The framers of the present Constitution, however, intended the position of
Chief Justice to be permanent, not one to be occupied in an acting or temporary capacity. Hence, read with
the 1987 Constitution, 12 only responds to the 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.

(3) Mandamus lies against the JBC only with regard to its ministerial function of submitting the list of nominees,
and only when there has been unjustified delay.
The JBC has the duty to submit a list of nominees before the start of the Presidents mandatory 90-day
period to appoint. That duty is ministerial, but its selection of the candidates whose names will be in the list is
discretionary. Thus, the object of the petitions for mandamus in this case 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. 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 JBC is thus directed to:

(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 by May 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.

dissent (J. Carpio Morales)

(1) The majority opinion relied heavily on the style of draftsmanship of the 1987 Constitution in order to
conclude that the prohibition in 15, Art. VII does not apply to the Judiciary. Draftsmanship style of the
Constitution, however, is the weakest aid in arriving at a constitutional construction.
(2) The establishment of the JBC is not sufficient to curtail the evils of midnight appointments in the
Judiciary. As stated by Mr. Davide, now a member of the Court, during the deliberations on the 1987
Constitution:
The idea of the proposal is that about the end of the term of the President, he may prolong his rule
indirectly by appointing people to these sensitive positions, like the commissions, the Ombudsman,
the JUDICIARY, so he could perpetuate himself in power even beyond his term of office; therefore
foreclosing the right of his successor to make appointments to these positions. We should realize that
the term of the President is six years and under what we had voted on, there is no reelection for him.
Yet he can continue to rule the country through appointments made about the end of his term to
these sensitive positions.
Hence, the clear intent of the framers is for the ban on midnight appointments to also apply to the
Judiciary.

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(3) The rule of statutory construction is that exceptions must be strictly construed. Already, the prohibition
against midnight appointments excepts temporary appointments; to create an additional exception in
favor of the Judiciary renders the provision practically useless. Nothing in the provision indicates that the
enumeration therein was not intended to be exclusive. Further, the fact that the prohibition was
couched in negative language reinforces its exclusivity.
(4) The 90-day period to fill a vacancy in the Supreme Court is suspended, or does not run, during the ban
on midnight appointments.
(5) The Supreme Court can function effectively during the period of the ban without an appointed Chief
Justice. Judicial power is vested in the Supreme Court as a bodynot in the individuals sitting therein. Its
competence, probity, and independence have never depended on whether the member voting as
Chief Justice is merely an acting Chief Justice or a duly appointed one.