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ARTURO M.

DE CASTRO,
Petitioner,

- versus -

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


ARROYO,
Respondents.

SC Chief Justice Reynato Puno’s compulsory retirement will be on May 17, 2010 or
seven (7) days after the coming presidential elections on May 10, 2010.

Legal dilemmas:

1. May President GMA appoint CJ Puno’s successor, considering that Section 15,
Article VII (Executive Department) of the Constitution prohibits the President or
Acting President from making appointments within two months immediately before
the next presidential elections and up to the end of his term (MIDNIGHT
APPOINTMENTS), except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public safety?

2. What is the relevance of Section 4 (1), Article VIII (Judicial Department) of the
Constitution, which provides that any vacancy in the SC shall be filled within 90
days from the occurrence thereof, from a list of at least three nominees prepared by
the JBC for every vacancy, to the matter of the appointment of his successor?

SUGGESTED ANSWER:

Yes. The SC ruled that the President may appoint CJ Puno’s successor because “Article
VII of the Constitution does not apply to appointments to fill a vacancy in the Supreme
Court or to other appointments to the Judiciary. “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.” Thus, the SC resolves to reverse its
ruling in Valenzuela (298 SCRA 408).

The Court said that “Although Valenzuela came to hold that the prohibition covered even
judicial appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest
on the deliberations of the Constitutional Commission. Thereby, the confirmation made
to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former
member of the Constitutional Commission, about the prohibition not being intended to
apply to the appointments to the Judiciary, which confirmation Valenzuela even
expressly mentioned, should prevail.
The SC also ruled that Section 15, Article VII does not apply as well to all other
appointments in the Judiciary. “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 lack of any appointed occupant of the office of Chief Justice harms the
independence of the Judiciary, because the Chief Justice is the head of the entire
Judiciary. The Chief Justice performs functions absolutely significant to the life of the
nation. With the entire Supreme Court being the Presidential Electoral Tribunal,
fellester.blogspot.com the Chief Justice is the Chairman of the Tribunal. There being no
obstacle to the appointment of the next Chief Justice, aside from its being mandatory for
the incumbent President to make within the 90-day period from May 17, 2010, there is no
justification to insist that the successor of Chief Justice Puno be appointed by the next
President,” the Court ruled. (De Castro vs. JBC, G. R. No. 191002, March 17, 2010)

May the President appoint the next Chief Justice from among the sitting justices of
the Court even without a JBC list?

SUPREME COURT:

“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:

xxx. 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.
xxx

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. It should be a good issue for the proposed
Constitutional Convention to consider in the light of Senate President Juan Ponce Enrile’s
statement that the President can appoint the Chief Justice from among the sitting justices
of the Court even without a JBC list.(De Castro vs. JBC, G. R. No. 191002, March 17,
2010)