ARTURO M.

DE CASTRO, Petitioner,
versus
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL ARROYO, Respondents.

[SEPARATE OPINION, J. BRION]

DOCTRINE: Midnight Appointment Ban

FACTS:
I AGREE with the conclusion that the President can appoint the Chief Justice and Members of the
Supreme Court two months before a presidential election up to the end of the President's term, but DISAGREE
with the conclusion that the authority to appoint extends to the whole Judiciary.

OPINION:
The basic requisite before this Court can rule is the presence of an actual case calling for the exercise of
judicial power. Thus, the Court does not issue advisory opinions, nor do we pass upon hypothetical cases, feigned
problems or friendly suits collusively arranged between parties without real adverse interests. Under Section 6 of
Article VIII of the Constitution, the Supreme Court is granted the power of administrative supervision over all
courts and the personnel thereof.  This aspect of the power of the Court - its power of supervision - is particularly
relevant in this case since the JBC was created "under the supervision of the Supreme Court," with the "principal
function of recommending appointees to the Judiciary." 

1. De Castro and Peralta’s petition is not a justiciable case for the issuance of a writ of certiorari and
should have been dismissed, given that both had failed to allege JBC to exercise judicial or quasi-
judicial functions, and in fact even states that the JBC does not have any judicial function.

Neither the Constitution nor the Rules of Procedure of the JBC categorically states when a list of nominees
for a vacant Supreme Court position shall be submitted to the President, although the Constitution gives the
President 90 days within which to fill the vacancy. Given these timelines and the May 17, 2010 vacancy date -
considered with the allegations regarding the nature of the JBC's functions and its actions that we are asked to
judicially notice - the De Castro petition filed on February 9, 2010 clearly does not present a justiciable case for the
issuance of a writ of certiorari. The petition cannot make an incorrect and misleading characterization of the JBC
action, citing our judicial notice as basis, and then proceed to claim that grave abuse of discretion has been
committed. The study of the question of submitting a list to the President in the JBC's step-by-step application and
nomination process is not a grave abuse of discretion simply because the petition calls it so for purposes of
securing a justiciable case for our consideration.

Peralta only differs from De Castro because it does not allege "deferment" on the basis of media reports
and judicial notice but even submits JBC’s resolution, stating only its welcoming view regarding the existing laws
and jurisprudence regarding the submission of shortlist of nominees which would clearly negate De Castro’s
argument of deferment, nor is it a refusal to perform a duty assigned by law as the duty to submit a list of
nominees will not mature until a vacancy has or is about to occur.

2. Soriano and Tolentino’s petition lacks merit. Soriano contends that the SC holds authority over
selecting the Chief Justice, not the President, whereas Tolentino seeks to issue a writ of prohibition
under Rule 65 of the 1997 Rules of Court, among others, to enjoin and restrain the JBC from
submitting a list of nominees for judiciary positions to the incumbent President, on the ground that
an existing election ban against appointments is in place under Section 15, Article VII of the
Constitution.
 JBC’s principal function is to recommend appointees to the judiciary and it has no authority to
interpret constitutional provisions. Tolentino argues that the appointment of a Chief Justice is not all that
important because the law anyway provides for an Acting Chief Justice. While this is arguably true, Peralta
misunderstands the true worth of a duly appointed Chief Justice. He forgets, too, that a Supreme Court
without a Chief Justice in place is not a whole Supreme Court; it will be a Court with only 14 members
who would act and vote on all critical matters before it. 

Soriano’s misinterprets Section 9, Article VIII for its generic term "Members of the Supreme
Court.” It is clear that in Section 4(1), it pertains to a "Supreme Court. . . composed of one Chief Justice
and fourteen Associate Justices," thus, both by law and history, the Chief Justice has always been a
Member of the Court - although, as a primus inter pares - appointed by the President together with every
other Associate Justice. 

3. Mendoza’s petition, on the other hand, must be granted. It is presented as an administrative matter
for the Court's consideration pursuant to its power of supervision over judges and over the JBC.

Expressly, the Mendoza petition looks to the Court's supervisory authority over the JBC, an authority that
the Court in fact asserted in Valenzuela when, in the exercise of "its power of supervision over the Judicial and Bar
Council," it "INSTRUCTED" the JBC "to defer all actions on the matter of nominations to fill up the lone vacancy in
the Supreme Court or any other vacancy until further orders." The JBC is now in fact waiting for the Court's action
on how it regards the Valenzuela ruling - whether the Court will reiterate, modify or completely abandon it. The
JBC expressly admitted its dilemna in its Comment when it said: "Since the Honorable Court is the final interpreter
of the Constitution, the JBC will be guided by its decision in these consolidated Petitions and Administrative
Matter." Under these plain terms, the JBC recognizes that a controversy exists on the issue of submitting a
shortlist to the President and it will not act except with guidance from this Court. Hence, said petition is ripe for
adjudication.

4. Declare 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 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.

5. Does a conflict of provisions textually exist? Yes and No. Section 15 seeks to remedy - vote buying, midnight
appointments and partisan reasons to influence the results of the election. The Court, however, forgot in some
statements in this case that hand in hand with Section 15 is Section 4(1) where the framers also recognized, in
clear and absolute terms, that a vacancy in the Court should be filled up because of the importance of having a
Supreme Court with its full and complete membership.

The separate realities that Section 15, Article VII and Section 4(1) bring to the fore now confront us with
the question of prioritizing our constitutional values in terms of two provisions that effectively operate in their
separate spheres, but which conflict when they directly confront one another. It can be argued that Section 15
does not apply to appointments of the Supreme Court, for the SC where continuity is by the appointment of a
replacement, the Constitution requires that the replacement Member of the Court, including the Chief Justice,
should be appointed within 90 days from the occurrence of the vacancy. This is the sense of urgency that the
Constitution imparts and is far different from the appointment of the justices and judges of the lower courts where
the requirement is 90 days from the JBC's submission of its list. This constitutional arrangement is what the
application of Section 15, Article VII to the appointment of Members of the Supreme Court will displace.

6. Regarding the Valenzuela Ruling. Valenzuela openly stated that at the root of the dispute was the then existing
vacancy in the Court and the difference of opinion on the matter between the Executive and the Court on the
application of Section 15, Article VII, in relation with Section 4(1) and 9 of Article VIII, of the Constitution.

Valenzuela should be read and appreciated for what it is - a ruling made on the basis of the Court's
supervision over judicial personnel that upholds the election ban as against the appointment of lower court judges
appointed pursuant to the period provided by Section 9 of Article VIII. Thus, Valenzuela's application to the filling
up of a vacancy in the Supreme Court is a mere obiter dictum as the Court is largely governed by Section 4(1) with
respect to the period of appointment. The Section 4(1) period, of course and as already mentioned above, has an
impact uniquely its own that is different from that created by the period provided for the lower court under
Section 9. 

A notable aspect of the Valenzuela ruling in the context of constitutional interpretation, is its conclusion that in a
conflict between two provisions - one in the Article on the Executive Department and the other an Article in the
Judicial Department - one of them should completely give way and the other should prevail.  For this reason, I do
not disagree with Valenzuela for its ruling on lower court judges; Section 15, Article VII may indeed prevail over
Section 9, Article VIII.

In contrast with this conclusion, an interpretation that Section 15, Article VII will similarly prevail over Section 4(1),
Article VIII is clearly misplaced. The structure, arrangement and intent of the Constitution and the public policy
reasons behind them simply speak against the interpretation that appointments of Members of the Court should
be subject to the election ban. To balance these two provisions, Section 4(1) of Article VIII should be recognized
as a narrow exception granted to the Judiciary in recognition of its proven needs. This is a narrow exception as
the election ban of Section 15, Article VII, shall apply with full force and effect on the appointment of lower
court justices and judges.

NOTES:

An administrative matter that is entered in the Court's docket is either an administrative case (A.C.) or an
administrative matter (A.M.) submitted to the Court for its consideration and action pursuant to its power of
supervision. An A.C. involves disciplinary and other actions over members of the Bar, based on the Court's
supervision over them arising from the Supreme Court's authority to promulgate rules relating to the admission to
the practice of law and to the Integrated Bar.

Closely related to A.C. cases are the Bar Matter (B.M.) cases particularly involving admission to the
practice of law. An A.M. is a matter based on the Supreme Court's power of supervision: under Section 6, Article
VIII, this refers to the Court's administrative supervision over all courts and the personnel thereof; under Section 8,
it refers to its supervision over the JBC.