De Castro v.

Judicial and Bar Council

G.R. No. 191002 17 March 2010 Bersamin, J.
Construction, defined Created by: Sef
PETITIONER RESPONDENTS
Arturo M. De Castro Judicial and Bar Council (JBC) and
President Gloria Macapagal-Arroyo
RECIT-READY SUMMARY
Dilemmas arise as Chief Justice Reynato S. Puno will retire by 17 May 2010, 7 days
after 2010 Presidential Elections. Considering Section 15, Article VII, Executive
Department, of the 1987 Constitution which prohibits the President or Acting President
from making appointments within two months before the election until the end of his
term, several petitions were filed and consolidated with regards to the case. All
petitioners poses a question whether the incumbent President can appoint a new Chief
Justice upon his retirement. A precedent frequently cited was the case of In Re
Appointments of Valenzuela and Vallarta (Valenzuela) wherein the president’s power
of appointment (midnight appointments) was prohibited, in accordance with Sec. 15,
Article VII of the Constitution and the provision applies to the appointments in the
judiciary. An issue was asked whether the JBC acted with grave abuse of discretion in
deferring the submission of the list of nominees to the President.

The Court ruled:

1. Section 15, Article VII does not extend to the appointments in the judiciary and
it is devoted to the Executive Department. If the framers intended for it to apply
to the judiciary, they could have explicitly done so.
2. The President has the imperative duty to make an appointment of a Member of
the SC within 90 days from the occurrence of the vacancy because of the usage
of word “shall” in Sec. 4, Article VIII.
3. It is the ministerial function of the JBC to prepare and submit to the President
the list of nominees to fill a vacancy in the SC to enable the President to make
an appointment within the set time period.
4. JBC has no discretion to withhold the submission of the list of nominees to the
President.
5. Valenzuela Ruling is reversed. It relied on the interpretation of the intent of the
framers rather than the deliberations of the Constitutional Commission. The
ruling in this case undermines the intent to ensure independence from the three
departments of Government.
6. Directed the JBC to prepare and submit the short list of nominees for the position
of Chief Justice to the incumbent President on or before 17 May 2010.
FACTS
1. Chief Justice Reynato S. Puno will have his complusary retirement by 17 May
2010. It occurs seven (7) days after the 2010 presidential election which is on
10 May 2010.
2. The President will then appoint his successor. But because of the Sec. 15, Article
VII (Executive) of the Constitution, the provision prohibits the President or Acting
President from making appointments within two months immediately before the
election and up to the end of his term, except temporary appointments to
executive positions when continued vacancies therein will prejudice public
service or endanger public safety.
3. Sec. 4, Article VIII (Judiciary) mandates, on the other hand, the appointment of
a successor for the Chief Justice position be filled within 90 days from the
occurrence of vacancy.
4. On 22 December 2009, Cong. Matias V. Defensor, an ex-officio member of the
JBC, sent a letter to the JBC, requesting for the process for the nominations to
the office of the CJ be commenced immediately.
5. On 18 January 2010, JBC passed a resolution wherein the Council unanimously
agreed to commence the process to fill up the CJ position. The Council called
for applications or recommendations.
6. On 8 February 2010, JBC resolved to proceed to the next step of announcing
the names of the candidates to invite the public to file their complaint or
opposition. The candidates are the following: Assoc. Justice Carpio, Assoc.
Justice Corona, Assoc. Justice Carpio Morales, Assoc. Justice Leonardo-De
Castro, Assoc. Justice Brion, and Assoc. Justice Sandoval.
7. Although JBC commenced the process, it is yet to decide when to submit to the
President the list of nominees because of the dilemma posed.
ISSUES RULING
1. Whether or not the incumbent YES
President has the appointing power
during election ban the success of
CJ Puno when he retires on 17 May
2010?

2. Whether or not the JBC has NO

violated any constitutional
provisions when the Council
commenced the process to fill the
position to be vacated?
 3. Whether or not the JBC has the YES
authority to decide when to submit
the list of names of nominees for
the CJ Position to the incumbent
president?
RATIONALE/LEGAL BASIS
1. On locus standi, all petitioners have demonstrated adequate interest in the
outcome of the controversy.
2. Sec. 15, Art. VII prohibition against presidential appointments does not extend
in the appointments in the judiciary. It is devoted to the Executive Department,
as well as Sec 14, 15 and 16. Article VIII, on the other hand, is dedicated to the
Judicial Department. Sec. 4 and 9 provide particularly for the appointment of the
SC Justices. If the framers intended to extend the prohibition in Art. VII to the
judiciary, they could have explicitly done so.
3. Statutory Construction: the usage of “shall” in Sec. 4, Art. VIII constitutes that
the appointment for a vacant position in the SC within 90 days from occurrence
is an imperative duty of the President. The Constitutional Commission intended
to make Sec 4. Art. VIII independent from other provisions. The enactment
should be construed with reference to its intended scope and purpose.
4. Valenzuela case ruling was reversed because it undermines the intent of the
Constitution of ensuring the independence of the three branches of the
Government. The ruling relied on the intent of the framers like Justice Regalado
rather than the deliberations of the Constitutional Commission.
5. On compelling the JBC to submit the list, the Court dismisses the petition for
mandamus. The requisites of mandamus: (a) the plaintiff has a clear legal right
to the act demanded; (b) it must be the duty of the defendant to perform the act,
because it is mandated by law; (c) the defendant unlawfully neglects the
performance of the duty enjoined by law; (d) the act to be performed is
ministerial, not discretionary; and (e) there is no appeal or any other plain,
speedy and adequate remedy in the ordinary course of law. JBC has the
mandate to submit a list of names of nominees to the President, as stated in Sec
8, 9, Art. VIII. And since the JBC has already commenced the process,
mandamus was not necessary. The duty of the JBC to submit a list falls under
their ministerial functions. Its selection of candidates lies within their
discretionary functions.
6. Ministerial vs. Discretionary: A purely ministerial act or duty is one which an
officer or tribunal performs in a given state of facts, in a prescribed manner, in
obedience to the mandate of a legal authority, without regard to or the exercise
of his own judgment upon the propriety or impropriety of the act done. If the law
 imposes a duty upon a public officer and gives him the right to decide how or
when the duty shall be performed, such duty is discretionary and not ministerial.
7. JBC is directed to continue with the process and submit the list of nominees on
or before 17 May 2010.
DISPOSITIONS
 The petitions for prohibition, certiorari and mandamus are DISMISSED.
 GRANTS petition for JBC to resume with the proceedings and submit the short
list of nominees for the position of Chief Justice on or before 17 May 2010.