University of the Philippines College of Law

Law on Public Officers | [ERPR]

Case Name DE CASTRO v. JBC

Topic Acquisition of Right or Title to Office; By Appointment; Appointment by the President
Case No. |
G.R. No. 191002 | March 17, 2010
Date
Ponente Bersamin, J.
The compulsory retirement of CJ Puno occurred just a week after the presidential
elections in May 10, 2010. Even before its happening, many legal dilemmas arose. May
the President appoint his successor, considering that Sec. 15, Article VII of the
Constitution prohibits P or VP from making appointments within two months before the
presidential elections up to the end of term? One of the petitioners Soriano offered the
Case Summary view that JBC committed grave abuse of discretion when it opened the selection process,
because the appointing authority for the CJ position is the SC, the President’s authority
being limited to only the appointment. In January 18, 2010, JBC agreed to start the
process of filling up the CJ position. The SC attempts to educate the bench, bar, and public
by interpreting the seemingly conflicting provisions, and attempts to lay the guidelines
for the JBC to work with.
The prohibition under Section 15, Article VII does not apply to appointments to fill
vacancies in the SC or to other appointments in the Judiciary. The records of the
deliberations of the ConCom reveal that the framers purposely excluded the Judiciary
from Sec15, Art. VII’s prohibition. In fact, the Constitution commands that the President
Doctrine fill up any vacancy within the Judiciary within 90 days. The use of “shall” in Sec4(1)
imposes an imperative duty which should not be disregarded. The purpose of the
prohibition was to prevent midnight appointments. The prohibition does not extend to
the Judiciary because JBC ensures the proper screening of candidates in an unhurried and
deliberate process.
Ruling Only Mendoza petition granted (see table of consolidated cases below)

RELEVANT FACTS
• Then-Chief Justice (CJ) Puno was set to compulsorily retire on May 17, 2010, a few days after the
presidential elections which took place on May 10, 2010.
• Congressman Defensor, an ex officio member of the Judicial and Bar Council (JBC) addressed a
letter to the JBC, requesting that the process for nominations to the office of CJ be commenced
immediately.
• JBC issued a resolution in the affirmative, opening the position of CJ for
application/recommendation. Several nominations and applications were made.
• On February 8, 2010, the JBC resolved to proceed to the next step: announcing of the names of the
candidates and inviting the public to file their sworn complaint/written report/opposition.
• Several cases were filed:
Date Filed Case Number Petitioner(s) Prayer(s)
February 9, 2010 G.R. No. 191002 De Castro Certiorari and Mandamus; compel JBC to submit
nominee list to incumbent President
February 29, 2010 G.R. No. 191149 Peralta (same)
February 10, 2010 G.R. No. 191032 Soriano Prohibition; prevent JBC from conducting
search/selection/nomination proceedings
February 11, 2010 G.R. No. 191057 Philippine Constitution Mandamus; JBC to submit its list of nominees,
Association (PHILCONSA) incumbent President not covered by prohibition
applying only to appointments in the Executive
Department
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February 15, 2010 Administrative Matter Mendoza Ruling on guidance for JBC (whether or not Section
No. 10-2-5-SC 15, Article VII applies to appointments in the
Judiciary)
March 8, 2010 G.R. No. 191342 Tolentino, Jr., and Inting Enjoin and restrain JBC from submitting a list of
(Integrated Bar of the Philippines nominees
(IBP) Governors for Southern
Luzon and Eastern Visayas
• Supreme Court (SC) consolidated the cases on March 9, 2010.

RATIO DECIDENDI
Issue Ratio
(Note: Long case with YES. Prohibition under Section 151, Article VII does not apply to appointments to
multiple issues, but that fill a vacancy in the SC or to other appointments to the Judiciary. The Court raised
which is relevant to
appointment by the
seven main points:
President is stated 1. Had the framers intended to extend the prohibition contained in Section
below) 15, Article VII to the appointment of Members of the Supreme Court, they
could have explicitly done so. Court reversed its prior ruling on the
W/N the President Valenzuela2 case as the decision arbitrarily ignored the express intent of
may appoint a CJ the Constitutional Commission to have Section 4 (1) 3, Article VIII stand
within two months independently of any other provision. The exchanges during deliberations
immediately of the Constitutional Commission further show that the filling of a vacancy
preceding the in the Supreme Court within the 90-day period was a definite mandate for
presidential the President.
elections 2. One of the reasons underlying the adoption of Section 15 as part of Article
VII was to eliminate midnight appointments from being made by an
outgoing Chief Executive, which specifically pertains to the Executive
department only. However, it has been recognized that a few carefully
considered midnight appointments to important positions can be made by
the outgoing President. 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 deliberate prior process of the JBC ensured that there
would no longer be midnight appointments to the Judiciary, and that the
JBC was precisely intended to de-politicize the Judiciary by doing away with
COA intervention.
3. Confirmation by Senior Associate Justice Regalado, former member of the
Constitutional Commission, that the election ban had no application to
appointments to the Court of Appeals (implying its non-applicability to the
Judiciary in general).

1
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.
2
The decision in In Re: Valenzuela wherein the court ruled that Section 15, Article VII extends to Judiciary is deemed to be a
wrong decision since it is in violation of Section 4 (1), Article VIII. Court: “Valenzuela now deserves to be quickly sent to the
dustbin of the unworthy and forgettable.”
3
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.
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4. Temporary or acting appointments mentioned in Sec 14, Art VII, which
refers only to appointments in the Executive Dept, can only undermine the
independence of the Judiciary due to their being revocable at will. There is
no law that authorizes the revocation of appointments in the Judiciary.
Prior to mandatory retirement or resignation, members of the Judiciary can
be removed for cause (judges on lower courts) or impeachment (members
of the SC).
5. In holding that Sec 15 extends to appointments to the Judiciary would
undermine the intent of the Constitution of ensuring the independence of
the Judicial Department from the Executive and Legislative Departments.
6. The need to apply Section 4(1) to every situation of a vacancy in the
Supreme Court. Section 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.
7. JBC list no longer necessary if appointee is to come from within the sitting
justices of the Supreme Court, as previously vetted by the JBC (Section 9
Article VIII of the Consti only applies to outsiders who are candidates for
Supreme Court positions). Sec 9, Art VIII: The Members of the Supreme
Court… 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 Judiciary Act of 1948

The Court does not agree with the posture that no urgency exists for the President
to appoint the successor of Chief Justice, considering that the Judiciary Act of 1948
can still address the situation of having the next President appoint the successor
by the appointment of an Acting Chief Justice. With reference to the Chief Justice,
he or she is appointed by the President as Chief Justice, and the appointment is
never in an acting capacity. The express reference to a Chief Justice abhors the
idea that the framers contemplated an Acting Chief Justice to head the
membership of the Supreme Court. In addition to this, the lack of any appointed
occupant of the office of Chief Justice harms the independence of the Judiciary.
The Court also stressed the importance of the Chief Justice as the Chairman of the
Presidential Electoral Tribunal, in line with the incoming elections. One should also
remember that the act was enacted at the time when the Chief Justice appointed
under the 1935 Constitution was subject to the confirmation of the Commission
on Appointments, and the confirmation process might take longer than expected.

RULING
“Dismiss the De Castro and Peralta petitions and for not being justiciability and for prematurity.
Dismiss the Soriano and the Tolentino petitions for lack of merit.
Dismiss all petitions and motions for interventions supporting or opposing the above petitions.
Grant the Mendoza petition and declare for the JBC's guidance that:
a) Section 4(1), Article VIII is an exception to the coverage of Section 15, Article VII; appointments to
the Supreme Court are not subject to the election ban under Section 15, Article VII so that the JBC
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can submit its list of nominees for the expected vacancy for the retirement of Chief Justice Reynato
S. Puno, on or before the vacancy occurs, for the President's consideration and action pursuant to
Section 4(1), Article VIII;
b) Reiterate our ruling in In re: Valenzuela and Vallarta that no other appointments of judges of the
lower courts can be made within the election ban period, pursuant to Section 15, Article VII.”

NOTES
Dissent:
Carpio-Morales, J:
1) The ratiocination regarding the positioning of a provision in the Constitution is a weak aid in arriving at a
constitutional construction.
a) In Anak Mindanao Party-List Group v. Executive Secretary (2007), the Court refused to recognize a
similar argument.
b) The mere sequencing of §§ 14, 15, and 16 of Art. VII does not suffice to signify functional
structuring.
2) The establishment of the JBC is not enough to curtail the evils of midnight appointments in the judiciary.
a) § 15 had its roots in Aytona v. Castillo (1962), among the voided appointments were an
appointment to the SC and two to the Court of Appeals. The Constitutional Commission saw it fit to
provide for a comprehensive ban on midnight appointments.
b) The mechanism of political indebtedness can play a factor when the outgoing President makes an
appointment to the Office of the CJ.
3) “All rules of statutory construction revolt against the interpretation arrived at by the ponencia.”
a) “[I]t insults the collective intelligence and diligence of the ConCom to postulate that it intended to
exclude the judiciary but missed out on that one.”
b) § 15, Art. VII, of the 1987 Constitution already allows the President, by way of exception, to make
temporary appointments in the Executive Department during the prohibited period.
c) The general rule is clear, the prohibition applies to all kinds of midnight appointments; the
Constitution did not make any distinction.
d) The exception is also clear: the express mention of one person/thing/consequence implies the
exclusion of all others.
e) Valenzuela is not faulty. The Court spoke in one voice, thus, the ponencia should not hastily reverse,
on the basis of Justice Regalado’s opinion, the Court’s unanimous en banc decision.
f) Verba legis non est recedendum, index animi sermo est: There should be no departure from the
words of the statute, for speech is the index of intention.
4) The 90-day period to fill a vacancy is suspended during the ban on midnight appointments.
a) A legal impossibility arises when the JBC list is submitted or the vacancy occurs during the
appointments ban and the 90-day period expires before the end of the ban.
b) § 15, Art. VII, is an express limitation on the President’s power of appointment. The running of the
90-day period is deemed suspended during the period of the ban which only takes effect only once
every six years.
c) Because there is a ban, there is no duty to appoint.
5) The Supreme Court can function effectively during the midnight appointments ban without an appointed CJ.
a) The JBC can never anticipate a vacancy and submit a list to the President before the 90-day period.
b) The Court is a collegial body operating on a one member, one vote basis, whether it sits en banc or
in divisions.