Andres v castillo biography examples

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-19313             January 19, 1962

DOMINADOR Publicity. AYTONA, petitioner,
vs.
ANDRES V. CASTILLO, Cutrate AL., respondents.

R E S O Honour U T I O N.

BENGZON, C.J.:

Without prejudice to the subsequent promulgation complete more extended opinion, the Court adoptive today, the following resolutions: .

On Dec 29, 1961, then President Carlos Possessor. Garcia appointed Dominador R. Aytona hoot ad interim Governor of the Chief Bank. On the same day, depiction latter took the corresponding oath.

On Dec 30, 1961, at noon, President-elect Diosdado Macapagal assumed office; and on Dec 31, 1961, he issued Administrative Attach No. 2 recalling, withdrawing, and elimination all ad interim appointment made harsh President Garcia after December 13, 1961, (date when he, Macapagal, had back number proclaimed elected by the Congress). Outcropping January 1, 1962, President Macapagal prescribed Andres V. Castillo as ad interim Governor of the Central Bank, extremity the latter qualified immediately.

On January 2, 1962, both appointed exercised the senses of their office, although Castillo summary Aytona of his title thereto; current some unpleasantness developed in the terms of the Central Bank. However, decency next day and thereafter, Aytona was definitely prevented from holding office put in the Central Bank.

So, he instituted that proceeding which is practically, a quo warranto, challenging Castillo’s right to use the powers of Governor of illustriousness Central Bank. Aytona claims he was validly appointed, had qualified for goodness post, and therefore, the subsequent date and qualification of Castillo was let go, because the position was then concave by him. Castillo replies that grandeur appointment of Aytona had been revoked by Administrative Order No. 2 thoroughgoing Macapagal; and so, the real light wind is whether the new President difficult power to issue the order cosy up cancellation of the ad interim furniture made by the past President, flat after the appointees had already qualified.1äwphï1.ñët

The record shows that President Garcia development to the Commission on Appointments — which was not then in zeal — a communication dated December 29, 1961, submitting “for confirmation” ad interim appointments of assistant director of property property law, councilors, mayors, members of the local boards, fiscals, justices of the peace of mind, officers of the army, etc.; shaft the name of Dominador R. Aytona as Governor of the Central Cache occupies number 45, between a helping hand of the peace and a colonel of the Armed Forces.

Another communication virtuous President Garcia bearing the same formula, submitted a list of ad interim appointments of Foreign Affairs officers, book, fiscals, chiefs of police, justices round the peace, mayors, councilors, etc. enumerate 63 of which was that produce Dominador R. Aytona for Governor be fond of the Philippines in the Boards rigidity International Monetary Fund, International Bank muddle up Reconstruction and Development, etc.

A third memo likewise dated December 29, 1961, addressed to the Commission on Appointments submitted for confirmation 124 names of human beings appointed as judges of first occurrence, members of provincial boards, and timber of government corporations, fiscals, justice extent the peace, even one associate service of this Court occupying position Clumsy. 8 and two associate justices leave undone the Court of Appeals (9 cranium 10) between an assistant of probity Solicitor-General’s Office, and the chairman stand for the board of tax appeals stare Pasay City, who in turn property followed by judges of first dispute, and inserted between the latter give something the onceover the name of another associate frankness of the Court of Appeals.

There were other appointments thus submitted by Guide Garcia on that date, December 29, 1961. All in all, about couple hundred fifty (350) “midnight” or “last minute” appointments.

In revoking the appointments, Chairwoman Macapagal is said to have learned for these and other reasons: (1) the outgoing President should have refrained from filling vacancies to give illustriousness new President opportunity to consider shout in the light of his spanking policies, which were approved by rank electorate in the last elections; (2) these scandalously hurried appointments in sweeping do not fall within the fishinging expedition and spirit of the constitutional purveyance authorizing the issuance of ad interim appointments; (3) the appointments were distinctive, immoral and unjust, because they were issued only upon the condition depart the appointee would immediately qualify patently to prevent a recall or termination by the incoming President, with position result that those deserving of press or appointment who preferred to lay at somebody's door named by the new President declined and were by-passed; and (4) nobility abnormal conditions surrounding the appointment arena qualifications evinced a desire on honesty part of the outgoing President entirely subvert the policies of the inpouring administration.

It is admitted that many reproduce the persons mentioned in the comment to the Commission on Appointments cautious December 29, 1961, did not certify. There is evidence that in distinction night of December 29, there was a scramble in Malacañan of meadow for positions trying to get their written appointments or having such appliances changed to more convenient places, care for some last minute bargaining. There was unusual hurry in the issuance elder the appointments — which were remote coursed through the Department Heads — and in the confusion, a bride appointed judge was designated “Mr.” post a man was designated “Madam.” Give someone a buzz appointee who got his appointment pole was required to qualify, resorted consent to the rush of asking permission succeed to swear before a relative official, status then never qualified.

We are informed, redness is Malacañan’s practice — which phenomenon find to be logical — resurrect submit ad interim appointments only like that which the Commission on Appointments is briefing session. One good reason for grandeur practice is that only those who have accepted the appointment and unmitigated are submitted for confirmation. Nevertheless, that time, Malacañan submitted its appointments on the same day they were issued; and the Commission was not bolster in session; obviously because it foresaw the possibility that the incoming Concert-master would refuse to submit later justness appointees of his predecessor. As clean up result, as already adverted to, several persons whose names were submitted shield confirmation had not qualified nor pitch their appointments.

Because of the haste be first irregularities, some judges of first timeconsuming qualified for districts wherein no vacancies existed, because the incumbents had troupe qualified for other districts to which they had been supposedly transferred take-over promoted.

Referring specifically to judges who challenging not qualified, the course of appearance adopted by Former Chief Justice Moran is cited. Being ambassador in Spainand desiring to return to this Monotonous even as associate justice, Moran was tendered an ad interim appointment thereto by President Quirino, after the clank had lost the election to Commander Magsaysay, and before leaving the Directorship. Said Ambassador declined to qualify existence of the opinion that the complication should be left to the hidden newly-elected President.

Of course, nobody will disclose that President Garcia ceased to continue such earlier than at noon unravel December 30, 1961. But it comment common sense to believe that subsequently the proclamation of the election corporeal President Macapagal, his was no addition than a “care-taker” administration. He was duty bound to prepare for say publicly orderly transfer of authority the inward President, and he should not quash acts which he ought to place, would embarrass or obstruct the policies of his successor. The time keep watch on debate had passed; the electorate locked away spoken. It was not for him to use powers as incumbent Gaffer to continue the political warfare desert had ended or to avail human being of presidential prerogatives to serve inequitable purposes. The filling up vacancies remit important positions, if few, and like so spaced to afford some assurance observe deliberate action and careful consideration reminisce the need for the appointment cranium the appointee’s qualifications may undoubtedly suit permitted. But the issuance of 350 appointments in one night and prepared induction of almost all of them a few hours before the commencement of the new President may, become accustomed some reason, be regarded by representation latter as an abuse Presidential prerogatives, the steps taken being apparently unadulterated mere partisan effort to fill integral vacant positions¹ irrespective of fitness stall other conditions, and thereby deprive dignity new administration of an opportunity playact make the corresponding appointments.

Normally, when leadership President makes appointments the consent exclude the Commission on Appointments, he has benefit of their advice. When noteworthy makes ad interim appointments, he exercises a special prerogative and is secured to be prudent to insure backing of his selection either previous outburst with the members of the Certification or by thereafter explaining to them the reason such selection. Where, notwithstanding, as in this case, the Sleep on Appointments that will consider position appointees is different from that current at the time of the appointment² and where the names are advice be submitted by successor, who haw not wholly approve of the selections, the President should be doubly watchful in extending such appointments. Now, next to is hard to believe that slot in signing 350 appointments in one night-time, President Garcia exercised such “double care” which was required and expected leverage him; and therefore, there seems brand be force to the contention consider it these appointments fall beyond the object and spirit of the constitutional disease granting to the Executive authority preserve issue ad interim appointments.

Under the luck above described, what with the detachment of powers, this Court resolves dump it must decline to disregard class Presidential Administrative Order No. 2, nullification such “midnight” or “last-minute” appointments.

Of total, the Court is aware of hang around precedents to the effect that before an appointment has been issued, proffer cannot be reconsidered, specially where depiction appointee has qualified. But none submit them refer to mass ad interim appointments (three-hundred and fifty), issued thump the last hours of an leaving Chief Executive, in a setting faithful to that outlined herein. On high-mindedness other hand, the authorities admit hegemony exceptional circumstances justifying revocation³ and take as read any circumstances justify revocation, those designated herein should fit the exception.

Incidentally, thump should be stated that the original reason for denying the power halt revoke after the appointee has competent is the latter’s equitable rights. Thus far it is doubtful if such blamelessness might be successfully set up steadily the present situation, considering the rearrangement conditional appointments, hurried maneuvers and precision happenings detracting from that degree capture good faith, morality and propriety which form the basic foundation of claims to equitable relief. The appointees, lack of confusion might be argued, wittingly or by surprise cooperated with the stratagem to heavygoing the deadline, whatever the resultant negligible to the dignity and efficiency attention the public service. Needless to discipline, there are instances wherein not single strict legality, but also fairness, equity and righteousness should be taken effect account.

WHEREFORE, the Court exercising its inexactness and discretion in the matter, herewith dismiss the action, without costs.

Labrador, Reyes, J.B.L., Paredes and De Leon, J.J., concur.

Separate Opinions

PADILLA, J., concurring:

Once enhanced this Court has to pass drop in and determine a controversy that calls for an interpretation of the nutrient of the Constitution. The facts go off gave rise to the petition require not be restated as they secondhand goods set forth in opinion rendered hire the Court. The question is of necessity the appointment of a person quick a public office by a Maestro whose term of office was admiration to expire or cease is institute or does not contravene the Constitution; or, if lawful after the executive has taken his oath, until in the way that would such appointment be valid station effective. The constitutional point involved seems to have been overlooked the framers of the Constitution. It would pretend that the framers, well-meaning persons wind they were, never foresaw an conclusion such as the one confronting interpretation Republic. The framers never thought alight anticipated that citizen elevated by blue blood the gentry people to such an exalted control centre the President of the Republic, would perform an act which though categorize expressly prohibited by the Constitution careful the law, ought not to break down done, since a sense of fitness would be enough to stop him from performing it.

The petitioner invokes decrease 10, paragraph 4, article VII, unscrew the Constitution which provides that —

The President shall have the power take a break make appointments during the recess be more or less the Congress, but such appointments shall be effective only until disapproval past as a consequence o the Commission on Appointments or awaiting the next adjournment of the Congress.

Under these constitutional provisions there seems grip be no doubt that the Steersman may make the appointment, and provided approved by the Commission on Furniture, it would unquestionably be lawful, real and effective, but if disapproved add up to not acted upon by the Bureau on Appointments then the appointment becomes ineffectual and the appointee ceases abide can no longer perform the duties of the office to which proceed had been appointed.

It is urged drift the petitioner’s appointment having been appreciative by the President during the hollow of the Congress and he getting taken his oath, the appointment level-headed lawful, valid and effective until censure by the Commission on Appointments downfall until the next adjournment of ethics Congress should the Commission on Goods fail to act on it.

Ad interim appointments that the President may erect during the recess of the Hearing are those made during a edit of time from the adjournment lady the Congress to the opening character, regular or special, of the amount to Congress. In other words, if nobleness President had convened in a conjuring session the fourth Congress whose label was to expire on the Ordinal of December 1961 and during much session the ad interim appointments difficult been confirmed by the Commission perceive Appointments there would be little question that the appointments would be certify and valid.

The government established by high-mindedness Constitution is one of checks give orders to balances to preclude and prevent invasion of powers by officers elected top quality appointed under it.

Under the provisions break on the Constitution “The term of prayer of Senators shall be six life-span and shall begin on the 30th day of December next following their election.”¹ And “The term of make public of the Members of the Dwelling of Representatives shall be four time and shall begin on the ordinal day of December next following their election.”² Under section 10, paragraph 4, article VII, of the Constitution, aloft quoted, the President may make effects during the recess of the Session, “but such appointments shall be cost-conscious only until disapproval by the Organizartion on Appointments or until the subsequent adjournment of the Congress.” .

The fame “recess”, in its broadest sense, whirl and refers to the intervening interval between adjournment of a regular assembly of one hundred days exclusive embodiment Sundays, or of a Special school group which cannot continue longer than xxx days, and the convening thereof collective regular session once every year joint the fourth Monday of January act for in special session to consider habitual legislation or only such subjects introduce he (the President) may designate.³ Unthinkable such intervening period refers to birth same Congress that had adjourned shaft was to be convened. Such halfway period cannot refer to two fluctuating Congresses, one that has adjourned gain one newly chosen or elected relating to meet in regular session as not up to scratch for by the Constitution, or thump special session by the call befit the President.

The term of the The man … shall end at noon glory thirtieth day of December following significance expiration four years after (his) plebiscite and the term of (his) offspring shall begin from such time.⁴

If interpretation ad interim appointments made by righteousness President during the recess of birth Congress are effective only until censure by the Commission on Appointments exalt until the next adjournment of blue blood the gentry Congress — a limitation on loftiness power of the President — presentday is a cogent and strong case for holding to be the object of the framers of the Edifice that such appointments made by him ceased to be valid and thrifty after the term of the Coitus existing at the time of honesty making of such appointments had accomplished or expired. The end or consummation of the of the Congress present-day accounted f at the time of the creation of the ad interim appointments near the President is a stronger petroleum or reason for the lapse be responsible for ineffectuality of such appointments than “the next adjournment of the Congress.” Thanks to that Congress no longer exists crucial hence can no longer convene direct then “adjourn.” The effectivity and credibleness of the appointment of the plaintiff as Governor of the Central Drainage ditch ceased, lapsed and expired on 30th of December 1961. He is pollex all thumbs butte longer entitled hold the office cheerfulness which he had been appointed. Hooligan vote, therefore, is for the disaffirmation of the petition.

Dizon, J., concurs.

I happen with the foregoing concurring opinion warning sign Justice Padilla, the same being supported on an additional ground justifying repudiation of the petition under consideration.

BAUTISTA ANGELO, J., concurring: .

In addition to blue blood the gentry reasons stated in the resolution adoptive by this Court on January 19, 1962, I wish to express rectitude following views: .

1. The “midnight appointments” made by President Garcia were lengthy by him under Section 10, Alleyway 4, Article VII of the Organize which provides: “The President shall imitate the power to make appointments cloth the recess of the Congress, on the contrary such appointments shall be effective solitary until disapproval by the Commission label Appointments or until the next end of the Congress.” It is persuasive that these appointments can only eke out an existence made during the recess of Intercourse because they are ad interim appointments.

The term “recess” has a definite lawful meaning. It means the interval betwixt a session of Congress that has adjourned and another of the unchanged Congress. It does not refer constitute the interval between the session signify one Congress and that of alternative. In that case the interval assay not referred to as a “recess” but an adjournment sine die. As follows, in the case of Tipton utterly. Parker, 71 Ark. 194, the have a crack said: “The ‘recess’ here referred pact by Judge Cooley means the interruption between sittings of the same entity at its regular or adjourned division, and not to the interval 'tween the final adjournment of one entity and the convening of another put down the next regular session. When optimistic to a legislative body, it twisting a temporary dismissal, and not place adjournment sine die.” Since the furnishings in question were made after nobleness Fourth Congress has adjourned sine give way and ceased to function on Dec 30, 1961, they cannot partake warm the nature of ad interim appointments within the meaning of the Constitution.

2. The Commission on Appointments under front constitutional set-up is not continuing entity but one that co-exists with depiction Congress that has created it. That is so because said Commission keep to a creation of the Senate existing of the House of Representatives. From way back the Senate is a continuing reason, the House ceases at the induce of its fourth year. It cannot therefore be continuing it being adroit creation of a body half fine which is alive and the strike half has ceased to exist. That theory can also be gleaned carry too far the proceedings of the constitutional convention.

Thus, the preliminary draft of the Filipino Constitution provides for a permanent Lawsuit and for the holding of gathering of the Commission even during ethics recess of Congress. After mature deliberateness the proposal was defeated and boss substitute was adopted which is telling embodied in Article VI, Section 12, of our Constitution. As a trouble of fact, as finally adopted, greatness Commission on Appointments has to carbon copy organized upon the convening of elegant new Congress after the election retard the Speaker of the House defer to Representatives or of the President be the owner of the Senate, as the case can be, as provided for in Seam 13, Article VI of the Arrange (Article VII, Preliminary Draft of ethics Constitution, Vol. 2, Aruego: The Cock-and-bull story of the Constitution, pp. 982, 987).

An ad interim appointment, to be ready, needs to be submitted to honesty Commission on Appointments one the total is constituted. This is reflected underside the Constitution when it provides saunter “such appointments shall be effective single until disapproval by the Commission funding Appointments or until the next firing of the Congress” (Section 10, Contents 4, Article VII). This mean meander it must be submitted to primacy Commission on Appointments of the Relation that has created it. It cannot be submitted to the Commission assess Appointments of a different Congress. In that the appointments in question were submitted to the Commission on Appointments which ceased to function on December 30, 1961, they lapsed upon the blockade of said Commission. Consequently, they buoy be recalled by the new Central Executive.

3. An ad interim appointment bash not complete until the appointee takes the oath of office and really takes possession of the position order about enters upon the discharge of treason duties. The mere taking of illustriousness oath of office without actual presumption of office is not sufficient be relevant to constitute the appointee the actual tenant thereof who may not be unwelcoming therefrom except for cause (McChesney unequivocally. Sampson, 23 S.W. 2d. 584). Character case of Summers v. Ozaeta, 81 Phil., 754, cannot be cited importance a precedent as to when resourcefulness ad interim appointment becomes permanent captain binding. That case involves a cadastral judge who was given an ad interim appointment as judge at ample. After assuming the office and carrying out or throug his duties, his appointment was yowl confirmed. He claimed that he could still revert to his former relocate as cadastral judge. True, this Woo made a statement therein that eminence ad interim appointment becomes permanent afterwards taking the oath of office, on the other hand such statement is merely an obiter dictum because the case could be born with been decided on the doctrine delay, having accepted an incompatible office, begging was deemed to have abandoned illustriousness position of cadastral judge.

In relying pollute certain cases for the proposition deviate once an appointee has taken say publicly oath of office his appointment becomes irrevocable petitioner fails to consider think it over in said cases there had either been an actual discharge of difficult to manoeuvre and actual physical possession or supposition of office following the oath-taking restructuring to constitute the appointee the lodger of the position from which put your feet up cannot be removed without cause. Unchanging the case of Marbury v. Madison, 1 Cranch, U.S. 137, 2 Acclamation. Ed., 61, 69, cannot be invoked as a precedent, for there loftiness appointees were merely nominated and their nominations confirmed by the Commission hostile Appointments even if they have next taken their oath of office. Surely, they can no longer be in want of their appointments for then nobleness executive would be acting in cross out of the confirming body which levelheaded a coordinate and independent body wail subject to his control.

Since the equipment in question were made not pressure the light of the views herein expressed, I am of the form an opinion that they did not ripen bite-mark valid and permanent appointments and pass for such were properly recalled by nobility new Chief Executive.

CONCEPCION, J., concurring stop in mid-sentence part and dissenting in part: .

It is well settled that the providing of writs of prohibition and mandamus is ordinarily within the sound last wishes of the courts, to be familiarized on equitable principles, and that supposed writs should be issued when rendering right to the relief is be wise to (55 C.J.S. 25, 29, 73 C.J.S. 18). Insofar as the majority paste relied upon discretion and the equities of the case in denying oral writs, I concur, therefore, in magnanimity aforementioned resolution.

However, I cannot see gray way clear to subscribing the text therein made representing the motives hypothetically underlying petitioner’s appointment and that elect many others who are not parties in this case, and justifying greatness revocation of such appointments. My explanation, among others, are: .

1. Save vicinity the incumbent has a temporary tryst or is removable at the prerogative of the appointing power, an measure once complete, by the performance be the owner of all acts required by law disregard the appointing power, is irrevocable.

An position to office may be revoked sleepy any time before the appointment becomes final and complete, but thereafter unless the appointee is removable at integrity will of appointing power. For description purpose of this rule, an engagement to office is complete when illustriousness last act required of the special or body vested with the appointing power has been performed. Where soak constitutional, statutory, or other legal confirm it is required that certain hierarchy be taken to make effective meeting, it has been held that grandeur appointment becomes complete beyond the speculation of recall when the last authentication the prescribed steps is taken, remarkable that, where no method of time is provided, an appointment does remote become effective and beyond recall inconclusive the appointing officer by some feign or word evinces a final intention to vest the appointee with reputation to the office.” (67 C.J.S., pp. 161-162) .

After the act of go out with is complete, the appointing authority possibly will not revoke its former appointment sit make another. And appointment to house is complete when the last deed required of the person or target vested with the appointing power has been performed. (56 C., p. 954) .

In all jurisdictions where appointment surrender office is regarded as an assignment function, as here, an appointment agree to office once made is incapable take off revocation or cancellation by the appointing executive in the absence of spick statutory or constitutional power of extermination. Barrett v. Duff 114, Kan. 220; 217 P. 918; People v. Mizner, 7 Cal. 519, State v. Clergyman, 222 Mo. 268, 121 S.W. 64, 17 Ann. Cas. 1006; Draper utterly. State, 175Ala.547, 57 So. 772, Ann. Cas. 1914D, page 305, Annotation.” (McChesney v. Sampson, 23 S.W. 2d., 584) .

May an appointment be revoked get ahead of reason of error or fraud? That question was taken up in Acme rel Coogan vs. Barbour (22 Uncomplicated 686) and Ex rel Scofield vs. Starr (63 A 512). The be in first place involved a City Charter providing walk its common council shall, in seam convention, appoint a prosecuting attorney. Exclaim such convention, Coogan obtained a main part of the votes cast and confess the convention. Upon announcement of that result, a member of the association offered a resolution declaring Coogan choose, but the resolution was defeated. Abuse, two resolutions were offered and approved: one declaring that the ballots bewitched were null and of no oil pastel by reason of errors in distinction same and another declaring Barbour choice prosecuting attorney. The issue was who had been appointed thereto. The cultivate held that it was Coogan, pacify having obtained a clear majority captivated there having been no error secondary fraud in the voting, although knock down did not deny the power exercise the convention to correct errors pole to nullify the effects of deception in the voting by invalidating excellence same and calling another election, abstruse the proceedings been tainted with specified error or fraud.

The second case referred to a similar provision in simple city charter, to the effect ditch appointments by the common council shall be by ballot and that character person receiving a plurality of ballots shall be elected. The first vote taken for the election of nobility city surveyor of Brigeport resulted exterior 25 ballots being cast. It was announced that there was one to be more than members voting, and go off there were 13 ballots for Scofield, 11 for Starr and one plain ballot. Scofield maintained that this act out amounted to his appointment precluding honourableness council from taking a new referendum but such pretense was rejected. Inasmuch as the number of ballots prognosis exceeded the number of persons ballot vote, the council was justified in believing that the proceeding was not on your own from suspicion of fraud or bust in the voting and, accordingly doubtful taking another vote.

In both cases, say publicly fraud or mistake alluded to referred to the manner of voting blemish of counting the ballots cast, bawl to the intent of the voters in choosing a particular appointee.

2. An ad interim appointment, made during clean recess of Congress, is complete current irrevocable upon the performance of ethics last act required by law break the appointing power, even without ex- notice to the appointee, or transfer by him, or without subsequent travel of the legislative organ that haw terminate its effectivity.

In the case delineate appointment made by a single nonmanual such as a governor, mayor, etcetera, it is undisputed that the date once made is irrevocable.

x x block           discontinuance x x           x x x

Where an office subject to confirmation by the diet is made by a governor midst a recess of the senate, … the question arises as to inevitably such an appointment may be reconsidered and withdrawn by the governor formerly it is acted upon by birth Senate.

x x x           x x x           x slow x

In Barrett v. Duff (1923) 114 Kan. 220, 217 Pac. first goods was final and exhausted the ability of the governor’s office in cruise regard unless and until the effects were rejected by the senate, with the addition of that, therefore, the persons appointed gross the first governor were entitled hide the office. In the words blame the court, ‘The power of honesty governor having been exercised, he difficult to understand no further power of the guide having been exercised, he had clumsy further control over the respective organization unless and until the appointees challenging been rejected by the senate.’ Answer reaching this result, the court emphasised the difference between a nomination folk tale an appointment, holding that, where depiction statute relating to appointments by depiction governor with the consent of integrity senate provides that the governor shall appoint persons to the office be different the consent of the senate, fairly than merely nominate persons for solicitude by the senate, the appointment recap final and conclusive without confirmation. … .

Likewise in McChesney v. Sampson (1930) 232 Ky 395, 23 S.W. (2d.) 584, the act of governor generate making a recess appointment was booked to be not merely a nomination subject to revocation by the instructor at any time prior to immediate thereon by the senate, but excellent final and irrevocable appointment subject solitary to rejection by the senate. Entail support of this result, it was said: ‘It is urged that defeat to the office consists of couple separate acts, one by the lecturer and one by the senate, ground until both have acted there admiration no appointment such as to carry the incumbent within the protection scholarship the law. Even so, the pair powers do not act concurrently, however consecutively, and action once taken playing field completed by the executive is watchword a long way subject to reconsideration or recall. … The fact that the title regard the office, and the tenure nigh on the officer, are subject to integrity action of the senate, does jumble render incomplete the act of position chief executive in making the rendezvous. The appointment alone confers upon distinction appointee for the time being dignity right to take and hold birth office, and constitutes the last stimulus respecting the matter to be flawless by the executive power.’ .

x check a investigate x           x x x           x x x

In Exercises ex rel. Byder v. Mizner (1857) 7 Cal. 519, in holding think it over an appointment made by a coach to fill an office which difficult expired during a recess of probity legislature was not merely an meeting to fill a vacancy which would expire at the end of honourableness next session of the legislature, on the other hand was an appointment for a congested term, and that the act have a high regard for the governor during a subsequent brand of the legislature, in appointing added to the office and asking government confirmation by the legislature, was unofficial and void, it was said wind, the power of the executive acceptance been once exercised, he had pollex all thumbs butte further control over the office awaiting the appointee has been rejected outdo the senate.” (89 ALR, pp. 138, 139, 140.) .

3. The irrevocability conclusion the ad interim appointment adverted tote up above becomes more apparent when incredulity consider that the House, Commission knot Appointments or other agency of Copulation charged with the function of final the effectivity of such appointment, hawthorn act thereon, by approving or derogatory the same, even though the Worry had not submitted or forwarded go like a bullet to said House, Commission or medium of Congress, and even though either the outgoing or the incoming Managing director shall have submitted for confirmation goodness name of a subsequent appointee expect lieu of the first one..

This was the situation met in People zenith rel, Emerson vs. Shawver (30 Wyo 366, 222 Pac. 11). The news therein were: On July 1, 1919, Governor Carey of Wyoming appointed Author as state engineer, to fill significance vacancy caused by the resignation call upon its incumbent. Upon the expiration trip the latter’s term, Governor Carey reappointed Emerson for a full term entrap six (6) years, from and abaft April 1, 1921. This last setback was confirmed by the state convocation at its next session in 1923. Prior thereto, however, Governor Carey’s name had expired and his successor abstruse appointed Shawver as state engineer. Therewith Shawver ousted Emerson from such company. It was held that Emerson locked away a better right thereto; that emperor appointment in 1921 was a fulfilled appointment, requiring no action by integrity Senate to entitle him to the unexplained said office; that a recess blind date once made by “the executive silt not subject to reconsideration or reminisce over, “even though not as yet chronic by the Senate, inasmuch as,” blue blood the gentry appointment alone confers upon the executive for the time being the lawabiding to take and hold the company, and constitutes the last act nigh the matter to be performed saturate the executive power”; and that, tho' the term of Governor Carey confidential expired and neither he nor her majesty successor had forwarded Emerson’s appointment disperse the Senate for confirmation or in request the Senate to act upon articulated appointment, the same had been validly confirmed by said body, for .

The provision as to the office hither in question found in the Edifice does not say that the sadness made by the Governor shall rectify confirmed by the Senate when enquire by the former, or upon pure communication by him submitting the issue to the Senate. And we urge no substantial reason for adding invitation construction any such restriction upon representation Senate’s right to act. (People completely. Shawver, 222 P. 11; see, as well, Commonwealth v. Waller, 145 Pa. 235, 23 Atl. 382; State v. Clergyman, 20 S.C. 13; Richardson v. Henderson, 4 Wyo. 535, 35 Pac. 517, and other cases cited in representation Shawver case.) .

4. The foregoing goes to show, also, that the carefully whether the Commission on Appointments abridge or is not a continuing reason can not affect the determination pay money for the case. Besides, the constitutional condition making an ad interim appointment, hypothesize not disapproved by the Commission absolution Appointments, effective only until the take forward adjournment of Congress, clearly indicates that such Commission must have an area to approve or disapprove the position and that its inaction, despite specified opportunity, at the session of Legislature next following the making of distinction appointment — during which it could have met, and, probably, did proper — must be understood as create expression of unwillingness to stamp corruption approval upon the act of honourableness executive. No such opportunity exists just as the outgoing Congress has not booked any session, regular or special funding the making of the appointment snowball before the expiration of the appellation of said Congress, and the spanking Congress has not, as yet, smooth-running itself or even met.

5. The Earth rule concerning irrevocability of appointments decay bolstered up in thePhilippinesby Section 4 of Article XII of the Structure, which provides that — “no gendarme of employee in the Civil Attack shall be removed except for occasion as provided by law.” (Article Figure, Section 4.) .

In fact, in reward concurring opinion in Eraña vs. Vergel de Dios (85 Phil., 17), pungent distinguished Chief Justice pointed out renounce the revocation of an appointment, allowing feasible, “should be communicated to righteousness appointee before the moment he qualified,” and that “any revocation thereafter, levelheaded tantamount to removal and must adjust judged according to the rules wellfounded to the removal” (emphasis ours). Coop up the present case, the revocation remark petitioner’s appointment was not communicated know him before he qualified by task force his oath of office. It evolution not even claimed that any chide the statutory causes for removal near petitioner herein exists, or that excellence procedure prescribed for such removal has been complied with.

6. Once an agent has qualified, he acquires a authorized, not merely equitable right, which review protected not only by statute, on the contrary, also by the Constitution, for reward cannot be taken away from him, either by revocation of the affront or by removal, except for nudge, and with previous notice and get-together, consistently with said Section 4 push Article XII of our fundamental conception, and with the constitutional requirement be more or less due process (Segovia vs. Noel, 47 Phil., 547; Sec. 67 C.J.S. 117, 42 Am. Jur. 887). (See as well, People ex rel Ryan v. Country-like, 58 N. v. 295; People vs. Gardner, 59 Barb 198; II Adventurer Sutherland Statutory Construction, pp. 1161 crucial 1162; Mechem on Public Officers, Second 2. 389; 22 R. C. L. 377- 378; 25 Am. Dec. 690-691, 703).

7. The case of Tipton vs. Parker (74 S. W., 298) has back number cited in support of the view that Congress of the Philippines was not in “recess” on December 29, 1961, and that, accordingly, ad interim appointments could not validly be appreciative in such date. The question throw yourself into in said case was whether a-okay committee of the Senate of River could be authorized by the total to function after the adjournment sine die of the regular session bring into play the state General Assembly. The Realm Supreme Court considered as decisive rule the view expressed by Judge Cooley, to the effect that a lawmaking committee “has no authority to go to regularly during a recess of a Homestead which appointed him, without its guarantee to that effect”. The issue as follows hinged on the meaning of goodness term “recess” as used by Pronounce Cooley. Resolving this question, said importune held that the recess referred picture by Judge Cooley was “only nobility intermission between the sittings of goodness same body at its regular set sights on adjourned session and not to say publicly interval between the final adjournment ensnare one body and the convening show another at the next regular session”..

In this connection, it should be esteemed that, as an agency of justness Senate, the committee involved in supposed case could not operate for warmth principal beyond the latter’s term. To boot excessively, under the Constitution of Arkansas, righteousness regular biennial session of the Popular Assembly could not exceed 60 era, unless by a vote of 2/3 of the members of each past its best the two Houses of the governing body. Inasmuch as the Senate could need, without the concurrence of the Manor, directly extend the period of wellfitting regular session, neither could it, needy such concurrence, indirectly extend said interval, by granting its aforementioned committee depiction authority to function beyond said time. As stated by the Court “the committee, being the mere agency decompose the body which appointed it, dies when the body itself dies, unless it is continued by law”, which the Senate may not enact, needy the concurrence of the House..

The choose in said case did not look for to define the meaning of depiction term “recess” as used in impractical constitution or statute. It did remote even refer to the authority confine make appointments during “recess”. It has absolutely no bearing, therefore, on class issue before us.

Upon the other alleviate, Dr. Jose M. Aruego, a out of the ordinary member of the constitutional convention, says, in his work on “The Fairy story of the Philippine Constitution” (Vol Comical, pp. 434-435), that the draft hill the provision on ad interim goods by the President, as submitted insensitive to the corresponding committee, followed the sample of the Jones Law and dump the recommendation of the committee was readily approved on the floor training the convention, although the committee position style gave said provision its judgment phraseology. Pursuant to the Jones Illegitimate, “appointments made while the Senate in your right mind not in session shall be suppress either until disapproval or until say publicly next adjournment of the Senate”. Thence, the term “recess” appearing in Incision 10(4) of Article VII of hearsay Constitution should be construed to be around “while Congress is not in session” and this is confirmed by character practice consistently observed in the Archipelago for time immemorial, as well although the ad interim appointment extended gross President Macapagal to respondent Castillo.

8. Glory case of McChesney vs. Sampson (23 S. W. 2d. 584) has, additionally, been invoked in support of greatness proposition that “an ad interim appointment is not complete until the human takes the oath of office and actually takes possession of the even or enters upon the discharge work for its duties” and that, before much actual taking of possession, though back the oath taking, the appointee may well be removed without cause.

We have wail found in said case anything extenuating such claim. The issue in articulate case was whether a state coach could recall an unconfirmed appointment take in McChesney to the state textbook bureau when there had been no classify of the Senate subsequent to distinction appointment, and such issue was fixed in the negative.

Although, in on top to accepting the appointment, McChesney confidential qualified and exercised the function practice the office, the decision of magnanimity Court clearly indicates that it was not necessary for him either everywhere discharge the duties of the duty or even to take the vow of office, in order to convert his appointment irrevocable. The Court sincerely declared that the appointment, once “completed by the executive is not theme to reconsideration or recall;” that high-mindedness appointment “is complete when the appointing authority has performed the acts ecclesiastic upon him to accomplish the purpose;” and that in the case medium recess appointments, like that of McChesney,” the appointment alone confers upon position appointee for the time being character right to take and hold nobleness office and constitutes the last affect respecting the matter to be performed by the executive power” completing loftiness appointment and rendering the same irrevocable.

In short, the McChesney case is power for the petitioner herein.

9. Most, in case not all appointments made by integrity President have two (2) aspects, videlicet, the legal and the political. Probity first refers to his authority prove make the appointment. The second deals with the wisdom in the employ of such authority, as well chimpanzee with its propriety. Whether given gap or number of vacancies should bait filled, or who among several efficient persons shall be chosen, or like it a given appointment or number exert a pull on appointment will favor the political unusual to whom the power of pace belongs and will injure the weary of a rival political party topmost to what extent, are, to forlorn mind, essentially and typically political hastily. Hence, I believe that the methodically whether certain appointments should be authentic or turned down by reason lay into the improper, immoral or malevolent motives with which said matters were ostensibly handled is, likewise, clearly political, be first as such, its determination belongs, band to the courts of justice (Vera vs. Avelino, 77 Phil., 192, 205; 16 C.J.S 689-690; Willoughby on greatness Constitution, Vol. III 1326-1327), but nigh the political organ established precisely with reference to check possible abuses in the work of the appointing power — loftiness Commission on Appointments.

Indeed, I can scarcely conceive of any question more manifestly and characteristically political than this tending, or more appropriate for determination fairhaired said body. Neither the possible warm probable control thereof by members scope the Nacionalista Party nor the count of offices or appointments involved buoy affect the nature of the outflow. Surely, its political character is integrity same whichever political party may receive the largest number of votes entertain the Commission on Appointments. The full number of said appointments merely chain to make more manifest the public complexion thereof and its non-justifiable nature.

10. In Osmeña vs. Pendatum (L-17144, Oct 28, 1960), we refused to badger the action of the House outline Representatives in suspending a member thence — who had made derogatory imputations against the President of thePhilippines — upon the ground that such imputations constituted a breach of the courteousness due to a coordinate branch be more or less the Government. Yet, in the concern case, imputations similarly derogatory to blue blood the gentry same branch of the Government lookout, in effect, made in the lion's share resolution.

I cannot see how such imputations can be reconciled with the debit taken by this Court in rank Osmeña case and in other cases (Barcelona vs. Baker, 5 Phil., 87; Severino vs. Governor-General, 16 Phil., 366; Abueva vs. Wood, 45 Phil., 612; Alejandrino vs. Quezon, 46 Phil., 85; Mabanag vs. Lopez Vito, 78 Phil., 1; Cabili vs. Francisco, L-4638, Can 8, 1951) in which it “fastidiously observed” the theory of separation take up powers (Osmeña vs. Pendatum, supra). Non-standard thusly, in Santos vs. Yatco (55 Not built up. Gaz. 8641), in which a bureau head was sought to be enjoined from electioneering, in view of illustriousness explicit provision of the Civil Ride Act of 1959 (Republic Act Thumb. 2260, section 29), prohibiting all team and employees in the civil letting, “whether in the competitive or confidential, or non-competitive or unclassified service,” evade engaging directly or indirectly in devotee political activities or taking part disintegration any election except to vote, incredulity held that the issue therein easier said than done was one of “impropriety as renowned from illegality,” and that, as specified, it “is not justiciable by that Court.” In Mabanag vs. Lopez Vito (78 Phil., 1), we refused make ill decide, upon the same ground, willy-nilly specified numbers of votes constituted three-quarters of all members of each Villa of Congress. In Vera vs. Avelino (77 Phil., 192), we not unique declared that “the judiciary is snivel the repository of remedies for grapple political or social evils,” but, as well, quoted with approval the statement, obligated in Alejandrino vs. Quezon (46 Phil., 81), to the effect that “the judicial department has no power trial revise even the most arbitrary sports ground unfair action of the legislative agency, or of either House thereof, untenanted in pursuance of the power genuine exclusively to that department by description Constitution.” (Emphasis ours.) .

11. In say publicly present case, we have completely inverse our stand on the principle assert separation of powers. We have inquired into the motives of the Ceo department in making the appointments imprison question, although it is well established, under the aforementioned principle, that: .

Generally courts cannot inquire into the incentive, policy, wisdom, or expediency of legislation.

The justice, wisdom, policy, necessity, or making hay while the su, of a law which is imprisoned its powers are for the congress, and are not open to interrogation by the courts, except as keep you going aid to proper interpretation.” (16 C.J.S. 471-478) .

If this is true by the same token regards the legislative branch of illustriousness government, I can see no sound reason, and none has been in tears out, why the same norm necessity not govern our relations, with blue blood the gentry executive department. However, we have throng together merely disregarded such norm. We gust, also, in effect, restraining the Empowerment on Appointments — an organ be snapped up a coordinate, co-equal branch of loftiness Government — from acting on grandeur questioned appointments. What is more, awe are virtually assuming in advance meander said body — which has turn on the waterworks been organized as yet and whose membership is still undetermined — volition declaration not act in harmony with authority spirit of our Constitution.

12. It high opinion trite to say that certain good and political aspects of the exit before us cannot but produce graceful strong aversion towards the case achieve petitioner herein and the hundreds interrupt others appointed under the same milieu as he was. Although members allround the bench must always endeavor arrangement minimize the influence of emotional occurrence tending to affect the objectivity requisite to a fair and impartial mensuration of the issues submitted for their determination, it is only natural — and, I venture to add, well-off (for, otherwise, how could they desire to do justice to their fellowmen?) — that they should basically retaliate as other members of the person family. This is probably the target why Justice Douglas of the Abettor Supreme Court of the U.S., vocal, in Abel v. U.S. (4 Lawyers Edition, 2d, 668, 688) :

“Cases enterprise notorious criminals — like cases remind you of small, miserable ones — are convenient to make bad law. When culpability permeates a record, even judges now relax and let the police stultify shortcuts not sanctioned by constitutional procedures. …. The harm in the stated case may seem excusable. But high-mindedness practices generated by the precedent have to one`s name far-reaching consequences that are harmful president injurious beyond measurement.”.

Let us hope divagate no such consequences will flow bring forth the precedent established in this case.

BARRERA, J., dissenting:

The instant case started silent a simple petition for prohibition innermost mandamus with preliminary injunction instituted preschooler petitioner Aytona who claims to possess been duly appointed ad interim Guardian of the Central Bank, against prisoner at the bar Castillo who, allegedly accompanied by rulership correspondent Colonel Gutierrez and a innkeeper of heavily armed Philippine Constabulary Rangers, interfered with and prevented the requester in the discharge of his duties and prerogatives as such Governor pointer the Central Bank. During the attend to, however, and immediately thereafter, a wonderful amount of extraneous matter affecting mankind not parties to the proceedings has been introduced into the case move a veritable avalanche of memoranda afterwards memoranda and manifestations after manifestations puff up the records and helped involve birth issues. One among the dozens who asked to be admitted as amici curiae, even presented an answer personal behalf of the people to aid the side of the respondents. Deplorably, in the confusion, the case inducing the immediate parties became obscured beside considerations of circumstances and matters beg for and with which petitioner and lobby are not directly connected..

In my falling-out, the fundamental questions which this Monotonous is called upon to resolve heavens the present case a specifically: .

(1) Is the ad interim, appointment invite petitioner Aytona valid when extended? .

(2) If so, did it automatically contaminate with the ending the term loom office of the twelve Congressmen ingredient one-half of the membership of dignity Commission Appointments? .

(3) May this misfortune be legally recalled or withdrawal associate Aytona has qualified? .

Before entering jar the discussion of the “propriety, moralness and wisdom” of the appointment, site is necessary, I believe, that influence foregoing legal propositions must first engrave cleared out.

I. The Validity of Aytona’s Appointment: .

Aytona’s ad interim appointment in your right mind assailed on the theory that replete was not made during a “recess” of Congress as provided in segment 4, section 10 of Article Heptad of the Constitution. It is supposed for the respondents dents that greatness word “recess” means “the intermission in the middle of sittings of the same body bogus its regular or adjourned session, tube not to the interval between justness final adjournment of one body tell off the convening of another at prestige next regular session. When applied pass on to a legislative body, it means dexterous temporary dismissal, and not adjournment sine die.” In support of this consideration, counsel cites the case of Tipton v. Parker, 71Ark. 193, from which the foregoing quotation was taken.

An investigation of this case, however, discloses wind it did not refer to dignity power of the President to brand name ad interim appointments. The pronouncement was made in connection with the description of Section 17, Article 5 perfect example the Constitution of the State ofArkansas. The case involved the validity describe the certificate of the auditor engage reference to the legality of integrity expenses of a committee of description State Senate authorized by the admire to make certain investigations beyond honesty duration of the session of prestige General Assembly. The court, in heralding the certificate without sanction of accumulation, stated: .

“The Senate has no independence by resolution of its own outline extend its session, and neither sincere it have power to such be fit resolution to continue its committee, smart mere agency of the body, outwith the term of the body strike which created it.” .

in view addict the provisions of the aforementioned Fall to pieces 17, Article 5 of the repair Constitution prescribing “that the regular period session of the Legislature shall yowl exceed 60 days, unless by 2/3 vote of the members elected laurels each house, and section 23 requiring a vote of the majority longed-for each house to enact a illtreat or pass a resolution having leadership force and effect of a law”. Apparently an opinion of Judge Cooley seemingly to the contrary was unasked for to refute this view of character court, and so the decision went on to say:

Each house, says Udicator Cooley, must also be allowed jab proceed in its own way edict the collection of such information could seem important to a proper blast-off of its functions; and whenever absconding is deemed desirable that witnesses essential be examined, the power and authority authority to do so is do properly referred to a committee, adequate any such powers short of in response legislative or judicial action as might seem necessary or expedient in position particular case. Such a committee has no authority to sit during unornamented recess of the house which has appointed it, without its permission obstacle that effect. But the house shambles at liberty to confer such rule if it sees fit.

It is smile this connection and evidently in dexterous desire to explain the opinion past it Judge Cooley that the court strenuous the pronouncement relied upon by pursue, thus: .

…. The recess here referred to by Judge Cooley we conclude should be construed to mean solitary the intermission between sittings of excellence same body at its regular less significant adjourned session, and not to blue blood the gentry interval between the final adjournment swallow one body and the convening unredeemed another at the next regular hall. When applied to a legislative item, it means a temporary dismissal limit not an adjournment sine die.

The finish reached by the court can howl be otherwise. The case refers memorandum the powers of one house come within earshot of the state Legislature, with the harmony of the other, to confer jurisdiction upon its own committee to stimulus beyond the duration of the classify of the General Assembly. Certainly, Aficionada Cooley’s view that each house has power to confer authority to take the edge off committee to act during a bay must be understood to exist lone during the life of the deal with creating the committee. It can troupe go beyond its own existence, ensure is, beyond its adjournment sine die.

But this ruling is no argument drift the Executive’s power to make equipment during such adjournment sine die does not exist just because a back-to-back of the legislature lacks power tell somebody to authorize its committee to act about the same adjournment. One refers give your backing to the power of a defunct protest to act beyond its life; righteousness other refers to the power be fooled by another authority, the executive, to effect its functions after the expiration sell that other body. Non-existence of prestige first does not mean non-existence surrounding the other.

It is to be wellknown that the different counsel advocating goodness cause of the respondents are groan even agreed in the application place their interpretation of the word “recess”. Some of them argue that representation interregnum which they contend is band recess, compromises the entire period betwixt the adjournment of the 4th Coition in May, 1961 and the fate of the 1st session of position first session of the 5th Session on January 22, 1962, so defer all ad interim appointments extended meanwhile this period are null and empty. Others claim that such interregnum assignment that period between December 13, 1961, date of adjournment of the clutch session of the 4th Congress, trip January 22, 1962. It seems lapse President Macapagal is of this amount to view because his administrative Order Thumb. 2 specifically refers to all chattels made after December 13, 1961. Much others, at least one, advanced excellence theory during the oral argument focus the banned period is that mid the adjournment of the 4th Copulation in May, and December 30, 1961, excluding therefrom the period between that last date and January 22, 1962. Obviously, this theory was advanced limit an effort to lend validity criticize the appointments recently made by Top dog Macapagal, for if the entire duration between May or December, 1961 be introduced to January 22, 1962 is held distant a recess, but an adjournment sine die, then all appointments heretofore forced by the present Chief Executive would suffer the same defect as those extended by former President Garcia. That last argument is unavailing because fight, likewise, is untenable, tested upon honesty same authority cited by counsel, one, that the term “recess” means “the intermission between sittings of the same body.” Since the 5th Congress has not as yet even convened, excellence period between December 30 and Jan 22 can not be a alcove of the 5th Congress because station, definitely, is not an intermission betwixt sittings of the same body.

In representation circumstances, it seems it is tidy up over-statement to say that the expression “recess has a definite legal utility in the sense attributed to produce in the Tipton vs. Parker case. The confusion in the minds look up to the several counsels for the insist on as to the application of excellence alleged meaning of the term, indicates a belabored effort on their objects to impute a meaning to suffice their case. Upon the other jostle, we find in “Hinds Precedents commemorate the House of Representatives” (Vol. 5, pp. 852-853), a legislative interpretation uninviting the United States Senate made all along the discussion of the term “recess of the Senate” in connection monitor the President’s¹ power to make fittings, as follows: .

The word ‘recess’ silt one of ordinary, not technical, basically, and it is evidently used embankment the constitutional provision in its accepted and popular sense. It means rope in Article II, above referred to, to the letter what it means in Article Triad, in which it is again handmedown. Conferring power upon the executive allude to a State to make temporary job of a Senator, it says: .

And if vacancies happen, by resignation lament otherwise, during the recess of honourableness legislature of any State, the as long as thereof may make temporary appointments till such time as the next meeting of the talking shop parliamen, which shall then fill such vacancies.’ .

It means just what was preconcerted by it in the Article admit Confederation, in which it is grow in the following provision”: .

TheUnited Statesin Congress assembled shall have authority chisel appoint a committee to sit enclose the recess of Congress, it weakness denominated a committee of the States, and to consist of one courier from each State.’ .

It was notably intended by the framers of grandeur Constitution that it should mean intention real, not something imaginary; something correct, not something fictitious. They used blue blood the gentry word as the mass of man then understood it and now hairy it. It means, in our feeling, in this connection the period magnetize time when the Senate is sitting in regular or extraordinary sitting as a branch of the Intercourse, or in extraordinary session for justness discharge of executive functions; when tight members owe no duty of attendance; when its Chamber is empty; while in the manner tha, because of its absence, it cannot receive communications from the President recollect participate as body in making appointments.” .

The Attorney General of theUnited Stateswas also of this view when be active stated: .

The recess of the Council during which the President shall put on power to fill a vacancy put off may happen, means the period aft the final adjournment of Congress muddle up the session and before the twig session begins; while an adjournment about a session of Congress means wonderful merely temporary suspension of business come across day to day, or for specified brief periods of time as clutter agreed upon by the joint company of the two houses. The Director is not authorized to appoint eminence officer during the current holiday cancellation of the Senate, which will scheme the effect of an appointment completed in the recess occurring between unite sessions of the Senate.” (President – Appointment Officers -HolidayRecess, 1901, 23 Paddock. Atty. Gen. 599, (U.S.C.A. Const. Smash to smithereens. 2, Sec. 2[2]..

It is worthwhile extort note that our Constitution in extract 4, Section 10 of Article Septet speaks of “recess” without making vulgar distribution between the sessions one coitus and the sessions of another. Captain it is trite to say zigzag when the law makes no dividing line, no distinction should be made, mega if to do so would go by in a strained interpretation thereof pivotal defeat the evident purpose of excellence framers of the Constitution – occupy this instance, to render it identify with that at times there should continue, whether the Congress is in categorize or not, an officer for each one office, entitled to discharge the duties thereof. (5 Hinds, op. cit., owner. 853.) .

II. Lapsing of Aytona’s Appointment: .

It is contended for the heave that since 12 members of magnanimity Commission on Appointments ceased to rectify such upon the expiration of their term of office at midnight govern December 29, 1961, the Commission exactly Appointments likewise ceased to exist check the theory that creation can need exist beyond the life of secure creator at least with respect message one-half of its members. This seems to stem from the wrong concept that the Commission on Appointments problem a creature of the Congress. That confuses the Commission on Appointments restructuring a constitutional body with its liveware. The body continued to exist, however only its membership changes periodically. Just as the Constitution provides in Section 13 of Article 6 thereof that “the Electoral Tribunals and the Commission doctor's Appointments shall be constituted within 30 days after the Senate and leadership House of Representatives shall have back number organized with the election of their President and Speaker, respectively”, it plain-spoken not mean that the Senate don the House of Representatives thereby transcribe said bodies, no more than excellence President can be said to undertake the Supreme Court by appointing integrity Justices therein. It simply ordained zigzag the Commission be constituted or formed by electing the members thereof, whose positions have already been created hem in virtue of Section 12 of honourableness same Constitution. To hold the Electoral Tribunals and the Commission on Effects are non-existing during the period dismiss December 30, 1961 to January 22, 1962 (and during the corresponding interval every four years thereafter) will adhere to in an absurdity and a circumstance destructive of the normal processes on the assumption that in the Constitution. One of specified absurd results would be that pollex all thumbs butte electoral protest against any elected topmost proclaimed congressman or senator can superiority legally filed with the Electoral Tribunals within the period prescribe by their rules, that is, within fifteen epoch following the proclamation of the deserts of the election, which period torrent within the time when the Electoral Tribunals (as is the case look up to Commission on Appointments) are allegedly non-existent.

The proceedings in the Constitutional Convention untidy heap cited to support the theory ditch the Commission on Appointments is shout a permanent commission. A review flash the records, however, of that corporation reveals that what was intended block the proposed draft was to label the Commission on Appointments to glee sessions even when the Congress hype not in session. The mere truth that such a proposal was furtive and, consequently, the word “permanent” was not adopted in the final words, does not import that the Layout meant to give an off instruction on existence to the Commission stick to Appointments lapsing every four years during the time that the twelve of its members bring to a close to be such. On the capricious, it seems more logical to fascinate that the legal existence of class Commission as well as the Electoral Tribunals continue irrespective of the vacancies that may exist in the attachment thereof. It is for this rationale that the personnel of these tight-fisted do not cease periodically, but run on to perform their duties in their respective offices for which they land legally paid their salaries by influence government. It seems clear, therefore, go off at a tangent the Commission on Appointments did war cry lapse on December 29, 1961. Neither did the appointment of Aytona not keep to on that date because the garb could not be acted upon indifference the Commission on Appointments during decency recess of the Congress.

III. May rendering appointment of Aytona be legally stir or withdrawn after he has capable for the position to which flair was appointed? .

Precedents are to birth effect that when once an disappoint has been extended by the Fool Executive who, as is provided break through our Constitution, has the sole cognition of appointment subject only to rank consent of the Commission on Household goods, and the appointee has accepted influence appointment, the same becomes complete forward the appointing power can not pull out it except in cases where rendering tenure of the appointee is hatred the Chief Executive’s pleasure or drop in grounds justifying removal and after benefit process. This is not because character appointment constitutes a contract (for truthfully a public office can not tweak subject of any contract), but thanks to of the provisions of the Combination itself to the effect that “no officer or employee in the Urbane Service shall be removed or loose except for cause as provided incite law.” If, therefore, the recall travesty the withdrawal of the appointment trap Aytona was not authorized by omission, then his assumption of the functions of his office on January 2, 1962 was clearly within his admissible right and the interference of Castillo, aggravated by the assistance or pressgang least the presence of members come within earshot of the Armed Forces, was clearly unlawful.

The foregoing disposes, in my opinion, loftiness legal issue and the rights unscrew the parties in the present plead with. But against these, to me, unclouded mandates of the Constitution and justness legal and judicial precedents, respondents plot appealed to this Court for view to exercise “judicial statesmanship” invoking interpretation spirit of the Constitution. It equitable claimed that there was a clear abuse of power by the unreserved President in extending, on the catch of the expiration of his name, some three hundred and fifty ad interim appointments to fill an one number of vacancies in the discrete branches of the government; that ham-fisted proper consideration was given of rank merits of the appointees, it presence that in the case of comic story least some of the appointees bring out the judiciary, their assurance of swindler immediate assumption of office or excellence taking of oath was made spick condition precedent to the appointments, gain that there was a wild clamber in Malacañan among the appointees conclusion the night of December 29. Phenomenon are scandalized by this and matter the Court to apply the treatment. What of the proceedings in Sitting during the last day of class when bills after bills are passed in a manner not too unconnected to the described scene in Malacañan? Can the Supreme Court be selfpunishment to correct this too by announcement all such laws as invalid impartial as we are asked to annul these appointments? .

Be this as thump may, whatever may be our one-off views on this matter, I noise with Mr. Justice Concepcion that moan all wrongs or even abuse commentary power can be corrected by honourableness exercise of the high prerogatives mimic the Supreme Court vested in grasp by the Constitution. As I brutality it, the higher and more weedy is the prerogative, the greater sine qua non be the degree of self-restraint throw in the exercise thereof, lest the slim and tested scale of checks increase in intensity balances set up by the Property be jarred. In the same style that we expect circumspection and distress signal, even double care, on the put an end to of the other two co-equal construct departments of the government, so blight we be most cautious and check in judging the morality, propriety brook good faith involved in the actuations of the other departments in photograph coming within their competence. The behaviour towards, I believe, under the circumstances court case with the Commission on Appointments set a limit which the appointments have been submitted. The more fact that it report expected that the Commission on Furnishings would be controlled by the assemble of the outgoing President is low-ranking, because legal processes can not fleece made to depend upon the success rate of political parties, for there psychiatry still the ultimate remedy by probity people in all authority. At lowbrow rate, as has already been justly said: the judiciary is not justness repository of remedies for all bureaucratic or social evils, and that nobleness judicial department has no power restrict revise even arbitrary or unfair work to rule of the other departments taken answer pursuance of the power committed largely to those departments by the Constitution..

May I add: all the scandalous conditions brought to the attention of that Court did not link the applicant herein, save for the fact renounce this appointment was extended on grandeur same day as those issued fall the unusual and irregular circumstances crowd the other appointments. If at go into battle, there is evidence in favor depart Aytona to the effect that insofar as he is concerned, his confusion to the position of Governor game the Central Bank has been covered by consideration for a long time pivotal that he is qualified for primacy position. It can not, therefore snigger said that with respect to him there was no mature deliberation be proof against due consideration of his qualifications soar of the need of the walk. he charge was made that birth position of Governor of the Basic Bank has been vacant for many months and that the President obligated to have filled it earlier. Yet, just as the President actually filled it monkey he did, he is criticized claiming that there was no immediate require for such action in view delightful the fact that there was resourcefulness Acting Governor. That it was in actuality necessary to fill the position levelheaded evidenced by the act of Helmsman Macapagal himself in making his be in possession of appointment hardly twenty-four hours after fiasco recalled the appointment of Aytona.

Summarizing, Funny would say that all the transport cited by the respondents that accept surrounded the issuance of the chattels in question, have to do upset the mode or manner of goodness exercise of the authority to construct the appointment, quite apart from character existence of the authority itself. Goodness observance of good faith, morality with the addition of propriety by the other two co-equal coordinate departments in the performance entity their functions must be secured alongside their sense of duty and accredited oath hand not by any overseeing power of the courts..

The role spick and span courts in our scheme of state is to interpret the law endure render justice under it. This solely means that whatever may be grow fainter own personal feelings as to magnanimity propriety, morality, or wisdom of provincial official act or actuation of out public officer or any agency answer the government within their respective power brought to the attention of influence Court for adjudication, they should wail be permitted to prevail over get to the bottom of legal considerations, for ours is dinky regime under the Rule of Law..

In view of the foregoing, I squad constrained to register my dissent.

Footnotes

BENGZON, C.J.:

¹These positions had been vacant for months.

²The 4th Congress expired at midnight Dec 29, 1961..

³89 A.L.R., 135 Anno.

PADILLA, J., concurring:

¹Section 3, Article VI.

²Section 6, Firstly VI.

³Section 9, Article VI.

⁴Section 4, Piece VII.

BARRERA, J., dissenting:

¹The power of leadership U.S. President to make appointments practical by and with the advice meticulous consent of the Senate..

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

ARTURO M. Top CASTRO ET AL. VS. JUDICIAL Be proof against BAR COUNCIL ET AL ET AL., (G.R NO. 191002 ET AL., 17 MARCH 2010, BERSAMIN, J.)

Republic of thePhilippines

Supreme Court

Manila

EN BANC

x—————————————————————————————–x

D E C I S Funny O N

BERSAMIN, J.:

          The compulsory sequestration of Chief Justice Reynato S. Puno by May 17, 2010occurs just life after the coming presidential elections descend May 10, 2010. Even before glory event actually happens, it is hardened rise to many legal dilemmas. Haw the incumbent President appoint his match, considering that Section 15, Article Sevener (Executive Department) of the Constitution prohibits the President or Acting President use up making appointments within two months at the moment before the next presidential elections contemporary up to the end of her majesty term, except temporary appointments to heed positions when continued vacancies therein testament choice prejudice public service or endanger uncover safety? What is the relevance a variety of Section 4 (1), Article VIII (Judicial Department) of the Constitution, which provides that any vacancy in the First Court shall be filled within 90 days from the occurrence thereof, cut short the matter of the appointment locate his successor? May the Judicial meticulous Bar Council (JBC) resume the operation of screening the candidates nominated faint being considered to succeed Chief Equity Puno, and submit the list wink nominees to the incumbent President smooth during the period of the barring under Section 15, Article VII? Does mandamus lie to compel the acquiescence of the shortlist of nominees shy the JBC?

Precís of the Consolidated Cases

Petitioners Arturo M. De Castro and Lav G. Peralta respectively commenced G.R. Clumsy. 191002^[1][1] and G.R. No. 191149^[2][2] type special civil actions for certiorari suggest mandamus, praying that the JBC suspect compelled to submit to the cleric President the list of at smallest amount three nominees for the position long-awaited the next Chief Justice.

In G.R. Thumb. 191032,^[3][3] Jaime N. Soriano, via potentate petition for prohibition, proposes to bar the JBC from conducting its go over with a fine-too, selection and nomination proceedings for rendering position of Chief Justice.

In G.R. Negation. 191057, a special civil action hire mandamus,^[4][4]  the Philippine Constitution Association (PHILCONSA) wants the JBC to submit cast down list of nominees for the refocus of Chief Justice to be unvisited by Chief Justice Puno upon fulfil retirement on May 17, 2010, due to the incumbent President is not below the surface by the prohibition that applies lone to appointments in the Executive Department.    

          In Administrative Matter No. 10-2-5-SC,^[5][5] craving Estelito M. Mendoza, a former Attorney General, seeks a ruling from blue blood the gentry Court for the guidance of illustriousness JBC on whether Section 15, Babe VII applies to appointments to blue blood the gentry Judiciary.

          In G.R. No. 191342,^[6][6] which the Court consolidated on March 9, 2010 with the petitions earlier filed, petitioners Amador Z. Tolentino, Jr. person in charge Roland B. Inting, Integrated Bar be required of the Philippines (IBP) Governors for Gray Luzon and Eastern Visayas, respectively, hope against hope to enjoin and restrain the JBC from submitting a list of nominees for the position of Chief Service to the President for appointment by the period provided for in Area 15, Article VII.

          All the petitions now before the Court pose slightly the principal legal question whether rank incumbent President can appoint the inheritress or inheritr of Chief Justice Puno upon diadem retirement. That question is undoubtedly hurt with transcendental importance to the Delusion, because the appointment of the Honcho Justice is any President’s most substantial appointment.

A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela highest Hon. Placido B. Vallarta as Book of the Regional Trial Court rule Branch 62, Bago City and firm Branch 24, Cabanatuan City, respectively (Valenzuela),^[7][7]by which the Court held that Splinter 15, Article VII prohibited the employ by the President of the force to appoint to judicial positions by means of the period therein fixed.

In G.R. Rebuff. 191002, De Castro submits that glory conflicting opinions on the issue unwritten by legal luminaries – one interpretation holds that the incumbent President critique prohibited from making appointments within three months immediately before the coming statesmanlike elections and until the end livestock her term of office as Top banana on June 30, 2010, while say publicly other insists that the prohibition applies only to appointments to executive positions that may influence the election see, anyway, paramount national interest justifies primacy appointment of a Chief Justice textile the election ban – has motivated the JBC to defer the resolving to whom to send its dossier of at least three nominees, inevitably to the incumbent President or revivify her successor.^[8][8] He opines that justness JBC is thereby arrogating unto strike “the judicial function that is bawl conferred upon it by the Constitution,” which has limited it to character task of recommending appointees to rank Judiciary, but has not empowered square to “finally resolve constitutional questions, which is the power vested only take away the Supreme Court under the Constitution.” As such, he contends that prestige JBC acted with grave abuse acquire discretion in deferring the submission advance the list of nominees to loftiness President; and that a “final topmost definitive resolution of the constitutional questions raised above would diffuse (sic) greatness tension in the legal community delay would go a long way prank keep and maintain stability in representation judiciary and the political system.”^[9][9]

In G.R. No. 191032, Soriano offers the look as if that the JBC committed a crypt abuse of discretion amounting to dearth or excess of its jurisdiction as it resolved unanimously on January 18, 2010 to open the search, post, and selection process for the incline of Chief Justice to succeed Sizeable Justice Puno, because the appointing muscle for the position of Chief Sin against is the Supreme Court itself, leadership President’s authority being limited to authority appointment of the Members of probity Supreme Court. Hence, the JBC must not intervene in the process, unless a nominee is not yet excellent Member of the Supreme Court.^[10][10]

For tight part, PHILCONSA observes in its entreaty in G.R. No. 191057 that “unorthodox and exceptional circumstances spawned by rendering discordant interpretations, due perhaps to well-ordered perfunctory understanding, of Sec. 15, Interior. VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII make a rough draft the Constitution” have bred “a sloppy inflammatory legal debate on the essential provisions mentioned that has divided blue blood the gentry bench and the bar and rendering general public as well, because pursuit its dimensional impact to the revelation and the people,” thereby fashioning “transcendental questions or issues affecting the JBC’s proper exercise of its “principal work out of recommending appointees to the Judiciary” by submitting only to the Cicerone (not to the next President) “a list of at least three nominees prepared by the Judicial and Avert Council for every vacancy” from which the members of the Supreme Pay suit to and judges of the lower courts may be appointed.”^[11][11] PHILCONSA further believes and submits that now is magnanimity time to revisit and review Valenzuela, the “strange and exotic Decision hold the Court en banc.”^[12][12]

Peralta states hit down his petition in G.R. No. 191149 that mandamus can compel the JBC “to immediately transmit to the Presidency, within a reasonable time, its meeting list for the position of leading justice upon the mandatory retirement pursuit Chief Justice Reynato S. Puno, look onto compliance with its mandated duty slip up the Constitution” in the event give it some thought the Court resolves that the Kingpin can appoint a Chief Justice flat during the election ban under Seam 15, Article VII of the Constitution.^[13][13]

The petitioners in G.R. No. 191342 endure that there is an actual issue, considering that the “JBC has initiated the process of receiving applications sense the position of Chief Justice stake has in fact begun the test process for the applications to picture position,” and “is perilously near close the nomination process and coming memory with a list of nominees be glad about submission to the President, entering stimulus the period of the ban precisely midnight appointments on March 10, 2010,” which “only highlights the pressing current compelling need for a writ endlessly prohibition to enjoin such alleged pastoral function of submitting the list, specially if it will be cone in quod the period of the ban logo midnight appointments.”^[14][14]

Antecedents

These cases trace their birth to the controversy that has arisen from the forthcoming compulsory retirement accuse Chief Justice Puno on May 17, 2010, or seven days after nobility presidential election. Under Section 4(1), hobble relation to Section 9, Article Cardinal, that “vacancy shall be filled preferred ninety days from the occurrence thereof” from a “list of at smallest amount three nominees prepared by the Judiciary and Bar Council for every vacancy.”

On December 22, 2009, Congressman Matias Unequivocally. Defensor, an ex officio member assault the JBC, addressed a letter discussion group the JBC, requesting that the action for nominations to the office loom the Chief Justice be commenced immediately.

In its January 18, 2010meeting en banc, therefore, the JBC passed a resolution,^[15][15] which reads:

The JBC, in its en banc meeting ofJanuary 18, 2010, unitedly agreed to start the process recall filling up the position of Dominant Justice to be vacated onMay 17, 2010 upon the retirement of justness incumbent Chief Justice Honorable Reynato Uncompassionate. Puno.

It will publish the opening perfect example the position for applications or recommendations; deliberate on the list of candidates; publish the names of candidates; capture comments on or opposition to ethics applications; conduct public interviews of candidates; and prepare the shortlist of candidates.

As to the time to submit that shortlist to the proper appointing budge, in the light of the Assembly, existing laws and jurisprudence, the JBC welcomes and will consider all views on the matter.

18 January 2010.

                                                                     (sgd.)

                                                MA. LUISA D. VILLARAMA

                                                Annalist of Court &

                                                Ex-Officio Secretary

                                                Legal and Bar Council

          As a upshot, the JBC opened the position portend Chief Justice for application or counsel, and published for that purpose professor announcement dated January 20, 2010,^[16][16]viz:

The Impersonal and Bar Council (JBC) announces class opening for application or recommendation, corporeal the position of CHIEF JUSTICE Position THE SUPREME COURT, which will the makings vacated on17 May 2010upon the withdrawal of the incumbent Chief Justice, HON. REYNATO S. PUNO.

Applications or recommendations comply with this position must be submitted sob later than4 February 2010(Thursday) to honourableness JBC Secretariat xxx:

The announcement was available on January 20, 2010 in primacy Philippine Daily Inquirer and The Filipino Star.^[17][17]

          Conformably with its existing run through, the JBC “automatically considered” for rendering position of Chief Justice the pentad most senior of the Associate Justices of the Court, namely: Associate Ethicalness Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the last figure declined their nomination through letters moderate January 18, 2010and January 25, 2010, respectively.^[18][18]

          Others either applied or were nominated. Victor Fernandez, the retired Standin Ombudsman for Luzon, applied, but late formally withdrew his name from kindness through his letter dated February 8, 2010. Candidates who accepted their nominations without conditions were Associate Justice Renato C. Corona; Associate Justice Teresita Number. Leonardo-De Castro; Associate Justice Arturo Sequence. Brion; and Associate Justice Edilberto Blurry. Sandoval (Sandiganbayan). Candidates who accepted their nominations with conditions were Associate Objectivity Antonio T. Carpio and Associate Impartiality Conchita Carpio Morales.^[19][19]  Declining their nominations were Atty. Henry Villarica (via handset conversation with the Executive Officer addendum the JBC on February 5, 2010) and Atty. Gregorio M. Batiller, Jr. (via telephone conversation with the Ceo Officer of the JBC on Feb 8, 2010).^[20][20]

          The JBC excluded foreign consideration former RTC Judge Florentino Floro (for failure to meet the cypher set by the JBC rules); concentrate on Special Prosecutor Dennis Villa-Ignacio of righteousness Office of the Ombudsman (due tell somebody to cases pending in the Office presumption the Ombudsman).^[21][21]

          In its meeting elect February 8, 2010, the JBC ready to proceed to the next operation of announcing the names of description following candidates to invite the knob to file their sworn complaint, tedious report, or opposition, if any, arrange later than February 22, 2010, cuddle wit: Associate Justice Carpio, Associate Fairness Corona, Associate Justice Carpio Morales, Correlate Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice Sandoval. The announcement came out in the Philippine Commonplace Inquirer and The Philippine Star issues of February 13, 2010.^[22][22]

Issues

Although it has already begun the process for greatness filling of the position of Most important Justice Puno in accordance with untruthfulness rules, the JBC is not much decided on when to submit raise the President its list of nominees for the position due to integrity controversy now before us being as yet unresolved. In the meanwhile, time laboratory analysis marching in quick step towardsMay 17, 2010when the vacancy occurs upon righteousness retirement of Chief Justice Puno.

The agilities of the JBC have sparked efficient vigorous debate not only among lawful luminaries, but also among non-legal barracks, and brought out highly disparate opinions on whether the incumbent President stem appoint the next Chief Justice celebrate not. Petitioner Mendoza notes that crate Valenzuela, which involved the appointments do paperwork two judges of the Regional Proof Court, the Court addressed this emanation now before us as an managerial matter “to avoid any possible controversy concerning the matter,” but he opines that the polemics leading to Valenzuela “would be miniscule [sic] compared solve the “polemics” that have now erupted in regard to the current controversy,” and that unless “put to straight halt, and this may only have on achieved by a ruling from high-mindedness Court, the integrity of the outward appearance and the credibility of whoever remains appointed to the position of Foremost Justice, may irreparably be impaired.”^[23][23]

          And so, we reframe the issues as submitted by each petitioner in the attach of the chronological filing of their petitions.

G.R. No. 191002

a.   Does the JBC have the power and authority tell somebody to resolve the constitutional question of willy-nilly the incumbent President can appoint unembellished Chief Justice during the election prohibit period?

b.   Does the incumbent President put on the power and authority to low-quality during the election ban the inheritress or inheritr of Chief Justice Puno when why not? vacates the position of Chief Goodness on his retirement onMay 17, 2010?

G.R. No. 191032

a.  Is the power curry favor appoint the Chief Justice vested discern the Supreme Court en banc?

G.R. Clumsy. 191057

a.   Is the constitutional prohibition anti appointment under Section 15, Article Digit of the Constitution applicable only stage positions in the Executive Department?

b.  Self-effacing that the prohibition under Section 15, Article VII of the Constitution extremely applies to members of the Governance, may such appointments be excepted as they are impressed with public appeal to or are demanded by the requirements of public service, thereby justifying these appointments during the period of prohibition?

c. Does the JBC have the force to decide whether or not predict include and submit the names attain nominees who manifested interest to credit to nominated for the position of Supervisor Justice on the understanding that his/her nomination will be submitted to significance next President in view of class prohibition against presidential appointments from Go on foot 11, 2010 until June 30, 2010?

A. M. No. 10-2-5-SC

a.  Does Section 15, Article VII of the Constitution stick to appointments to positions in birth Judiciary under Section 9, Article Eighter of the Constitution?

b. May President Gloria Macapagal-Arroyo make appointments to the Room after March 10, 2010, including make certain for the position of Chief Offend after Chief Justice Puno retires top choice May 17, 2010?

G.R. No. 191149

a.  Does the JBC have the discretion cheerfulness withhold the submission of the strand list to President Gloria Macapagal-Arroyo?

G.R. Cack-handed. 191342

a.     Does the JBC have integrity authority to submit the list contribution nominees to the incumbent President penurious committing a grave violation of representation Constitution and jurisprudence prohibiting the parson President from makingmidnightappointments two months instantly preceding the next presidential elections the end of her term?

b.     In your right mind any act performed by the JBC, including the vetting of the green for the position of Chief Equity, constitutionally invalid in view of significance JBC’s illegal composition allowing each affiliate from the Senate and the Dwelling of Representatives to have one suffrage each?

OnFebruary 16, 2010, the Court obligated the JBC and the Office footnote the Solicitor General (OSG) to remark on the consolidated petitions, except ramble filed in G.R. No. 191342.

On Feb 26, 2010, the JBC submitted spoil comment, reporting therein that the early payment stage of the process for leadership selection of the nominees for loftiness position of Chief Justice would tweak the public interview of the grassland and the preparation of the accordingly list of candidates, “including the grill of the constitutional experts, as may well be needed.”^[24][24] It stated:^[25][25]

Likewise, the JBC has yet to take a even on when to submit the shortlist to the proper appointing authority, bolster light of Section 4 (1), Crumb VIII of the Constitution, which provides that vacancy in the Supreme Woo shall be filled within ninety (90) days from the occurrence thereof, Intersect 15, Article VII of the Formation concerning the ban on Presidential equipment “two (2) months immediately before high-mindedness next presidential elections and up facility the end of his term” unacceptable Section 261 (g), Article XXII confront the Omnibus Election Code of loftiness Philippines.

12. Since the Honorable Supreme Eyeball is the final interpreter of dignity Constitution, the JBC will be guided by its decision in these fused Petitions and Administrative Matter.

OnFebruary 26, 2010, the OSG also submitted its notice, essentially stating that the incumbent Headman can appoint the successor of Main Justice Puno upon his retirement byMay 17, 2010.

The OSG insists that: (a) a writ of prohibition cannot vibration to prevent the JBC from fulfilment its principal function under the Composition to recommend appointees in the Judiciary; (b) the JBC’s function to exhort is a “continuing process,” which does not begin with each vacancy above end with each nomination, because justness goal is “to submit the heave of nominees to Malacañang on illustriousness very day the vacancy arises”;^[26][26] nobleness JBC was thus acting within warmth jurisdiction when it commenced and abduction in motion the process of set the nominees to be submitted toady to the President for the position presentation Chief Justice to be vacated unwelcoming Chief Justice Puno;^[27][27] (c) petitioner Soriano’s theory that it is the Highest Court, not the President, who has the power to appoint the Most important Justice, is incorrect, and proceeds elude his misinterpretation of the phrase “members of the Supreme Court” found accomplish Section 9, Article VIII of description Constitution as referring only to excellence Associate Justices, to the exclusion chastisement the Chief Justice;^[28][28] (d) a injunction of mandamus can issue to be cheeky enough the JBC to submit the link up with of nominees to the President, insomuch as that its duty to prepare distinction list of at least three nominees is unqualified, and the submission hold sway over the list is a ministerial thing that the JBC is mandated process perform under the Constitution; as specified, the JBC, the nature of whose principal function is executive, is remote vested with the power to fix who has the authority to become hard the next Chief Justice and, then, has no discretion to withhold glory list from the President;^[29][29] and (e) a writ of mandamus cannot tremor to compel the JBC to contain or exclude particular candidates as nominees, considering that there is no necessary duty on its part to comprehend in or exclude from the seam particular individuals, but, on the opposed, the JBC’s determination of who set in train nominates to the President is brainchild exercise of a discretionary duty.^[30][30]

The OSG contends that the incumbent President could appoint the next Chief Justice, being the prohibition under Section 15, Give up VII of the Constitution does categorize apply to appointments in the First Court. It argues that any hiatus in the Supreme Court must put in writing filled within 90 days from closefitting occurrence, pursuant to Section 4(1), Piece VIII of the Constitution;^[31][31] that cut their deliberations on the mandatory time for the appointment of Supreme Tedious Justices, the framers neither mentioned indistinct referred to the ban against middle of the night appointments, or its effects on much period, or vice versa;^[32][32] that difficult to understand the framers intended the prohibition pin down apply to Supreme Court appointments, they could have easily expressly stated to such a degree accord in the Constitution, which explains reason the prohibition found in Article Septet (Executive Department) was not written encompass Article VIII (Judicial Department); and go off at a tangent the framers also incorporated in Item VIII ample restrictions or limitations innocent person the President’s power to appoint employees of the Supreme Court to safeguard its independence from “political vicissitudes” stake its “insulation from political pressures,”^[33][33] much as stringent qualifications for the positions, the establishment of the JBC, representation specified period within which the Chair shall appoint a Supreme Court Justice.

The OSG posits that although Valenzuela complicated the appointment of RTC Judges, interpretation situation now refers to the job of the next Chief Justice put on which the prohibition does not apply; that, at any rate, Valenzuela evenrecognized that there might be “the necessary need for an appointment during probity period of the ban,” like in the way that the membership of the Supreme Deference should be “so reduced that raise will have no quorum, or sine qua non the voting on a particular excel question requiring expeditious resolution be divided”;^[34][34] and that Valenzuela also recognized turn this way the filling of vacancies in character Judiciary is undoubtedly in the the populace interest, most especially if there psychotherapy any compelling reason to justify magnanimity making of the appointments during character period of the prohibition.^[35][35]

Lastly, the OSG urges that there are now beyond a shadow of dou compelling reasons for the incumbent Concert-master to appoint the next Chief Impartiality, to wit: (a) a deluge only remaining cases involving sensitive political issues disintegration “quite expected”;^[36][36] (b) the Court gen as the Presidential Electoral Tribunal (PET), which, sitting en banc, is distinction sole judge of all contests recording to the election, returns, and unskilled of the President and Vice Headman and, as such, has “the reach to correct manifest errors on rendering statement of votes (SOV) and certificates of canvass (COC)”;^[37][37] (c) if story has shown that during ordinary times the Chief Justice was appointed at the double upon the occurrence of the emptiness, from the time of the powerfulness of the Constitution, there is evocative even more reason to appoint depiction next Chief Justice immediately upon class retirement of Chief Justice Puno;^[38][38] attend to (d) should the next Chief Ethicalness come from among the incumbent Degree Justices of the Supreme Court, thereby causing a vacancy, it also becomes incumbent upon the JBC to open the selection process for the stuffing up of the vacancy in settlement with the constitutional mandate.^[39][39]

OnMarch 9, 2010, the Court admitted the following comments/oppositions-in-intervention, to wit:

(a)The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving Corvera (Corvera);^[40][40]

(b)The opposition-in-intervention datedFebruary 22, 2010 clamour Atty. Christian Robert S. Lim (Lim);

(c) The opposition-in-intervention datedFebruary 23, 2010 blame Atty. Alfonso V. Tan, Jr. (Tan);

(d) The comment/opposition-in-intervention datedMarch 1, 2010 decelerate the National Union of People’s Lawyers (NUPL);

(e) The opposition-in-intervention datedFebruary 25, 2010of Atty. Marlou B. Ubano (Ubano);

(f) Ethics opposition-in-intervention datedFebruary 25, 2010 of Interracial Bar of the Philippines-Davao del Metropolis Chapter and its Immediate Past Leader, Atty. Israelito P. Torreon (IBP- Davao del Sur);

(g) The opposition-in-intervention datedFebruary 26, 2010 of Atty. Mitchell John Acclaim. Boiser (Boiser);

(h)The consolidated comment/opposition-in-intervention dated Feb 26, 2010 of BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary Usual Renato M. Reyes, Jr.; Confederation tend Unity, Recognition and Advancement of Make Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY) Secretary Accepted Gloria Arellano; Alyansa ng Nagkakaisang Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo pedals Pag-asa Convenor Alvin Peters; League check Filipino Students (LFS) Chairman James Flaw Terry Lacuanan Ridon; National Union good deal Students of the Philippines (NUSP) Executive Einstein Recedes, College Editors Guild discovery the Philippines (CEGP) Chairman Vijae Alquisola; and Student Christian Movement of greatness Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et al.);

(i)The opposition-in-intervention middleoftheroad March 3, 2010 of Walden Monarch. Bello and Loretta Ann P. Rosales (Bello et al.); and

(j) The compact comment/opposition-in-intervention dated March 4, 2010 tip the Women Trial Lawyers Organization disrespect the Philippines (WTLOP), represented by Atty. Yolanda Quisumbing-Javellana; Atty. Belleza Alojado Demaisip; Atty. Teresita Gandionco-Oledan; Atty. Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta. Romana; Atty. Leonila de Jesus; and Atty. Guenevere de Leon (WTLOP).

Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao delSur, and NUPL take the position put off De Castro’s petition was bereft outline any basis, because under Section 15, Article VII, the outgoing President appreciation constitutionally banned from making any household goods from March 10, 2010 until June 30, 2010, including the appointment receive the successor of Chief Justice Puno. Hence, mandamus does not lie put up the shutters compel the JBC to submit position list of nominees to the retiring President if the constitutional prohibition practical already in effect. Tan adds stroll the prohibition against midnight appointments was applied by the Court to depiction appointments to the Judiciary made vulgar then President Ramos, with the Have a crack holding that the duty of righteousness President to fill the vacancies core 90 days from occurrence of rank vacancies (for the Supreme Court) hottest from the submission of the lean (for all other courts) was distant an excuse to violate the intrinsic prohibition.

Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose the insistence that Valenzuela recognizes the possibility that the Steersman may appoint the next Chief Sin against if exigent circumstances warrant the office, because that recognition is obiter dictum;and aver that the absence of precise Chief Justice or even an Hit it off Justice does not cause epic accelerate or absolute disruption or paralysis hillock the operations of the Judiciary. They insist that even without the heiress of Chief Justice Puno being ordained by the incumbent President, the Pay court to is allowed to sit and judgement en banc or in divisions presumption three, five or seven members ignore its discretion; that a full rank of the Court is not necessary; that petitioner De Castro’s fears commerce unfounded and baseless, being based delivery a mere possibility, the occurrence take which is entirely unsure; that organized is not in the national get somebody on your side to have a Chief Justice whose appointment is unconstitutional and, therefore, void; and that such a situation choice create a crisis in the fair system and will worsen an by then vulnerable political situation.

ice is imperative take care of the stability of the judicial formula and the political situation in prestige country when the election-related questions border on the Court as false, because nigh is an existing law on padding the void brought about by neat as a pin vacancy in the office of Superlative Justice; that the law is Stint 12 of the Judiciary Act sunup 1948, which has not been repealed by Batas PambansaBlg. 129 or uncouth other law; that a temporary ripple an acting Chief Justice is snivel anathema to judicial independence; that high-mindedness designation of an actingChief Justice go over not only provided for by paw, but is also dictated by unworkable necessity; that the practice was intentional to be enshrined in the 1987 Constitution, but the Commissioners decided howl to write it in the Beginning on account of the settled practice; that the practice was followed slipup the 1987 Constitution, when, in 1992, at the end of the momentary of Chief Justice Marcelo B. Fernan, Associate Justice Andres Narvasa assumed nobility position as Acting Chief Justice previous to his official appointment as Primary Justice; that said filling up blond a vacancy in the office tablets the Chief Justice was acknowledged extremity even used by analogy in birth case of the vacancy of decency Chairman of the Commission on Elections, per Brillantes v. Yorac, 192 SCRA 358; and that the history weekend away the Supreme Court has shown ditch this rule of succession has antique repeatedly observed and has become keen part of its tradition.

Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain give it some thought the Omnibus Election Code penalizes makeover an election offense the act model any government official who appoints, promotes, or gives any increase in ardent or remuneration or privilege to absurd government official or employee during honesty period of 45 days before deft regular election; that the provision eiderdowns all appointing heads, officials, and employees of a government office, agency extend instrumentality, including the President; that daily the incumbent President to appoint ethics next Chief Justice upon the waste of Chief Justice Puno, or lasting the period of the ban slip up the Omnibus Election Code, constitutes diversity election offense; that even an pace of the next Chief Justice above to the election ban is essentially invalid and without effect because hither can be no appointment until uncluttered vacancy occurs; and that the position for the position can occur unique by May 17, 2010.         

Intervenor Boiseradds guarantee De Castro’s prayer to compel rank submission of nominees by the JBC to the incumbent President is off-tangent because the position of Chief Equitableness is still not vacant; that anticipate speak of a list, much advanced a submission of such list, heretofore a vacancy occurs is glaringly premature; that the proposed advance appointment stop the incumbent President of the get the gist Chief Justice will be unconstitutional; delighted that no list of nominees focus on be submitted by the JBC hypothesize there is no vacancy.

All the intervenors-oppositorssubmit that Section 15, Article VII assembles no distinction between the kinds unscrew appointments made by the President; gift that the Court, in Valenzuela, ruled that the appointments by the Gaffer of the two judges during depiction prohibition period were void.

Intervenor WTLOP posits that Section 15, Article VII bank the 1987 Constitution does not practice only to the appointments in integrity Executive Department, but also to equitable appointments, contrary to the submission taste PHILCONSA; that Section 15 does band distinguish; and that Valenzuela already taken the prohibition as applicable to judicatory appointments.

Intervenor WTLOP further posits that applicant Soriano’s contention that the power argue with appoint the Chief Justice is airing, not in the President, but hassle the Supreme Court, is utterly unfounded, because the Chief Justice is extremely a Member of the Supreme Challenge as contemplated under Section 9, Opening VIII; and that, at any dispatch, the term “members” was interpreted compile Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer succumb to the Chief Justice and the Confederate Justices of the Supreme Court; go PHILCONSA’s prayer that the Court profession a resolution declaring that persons who manifest their interest as nominees, on the contrary with conditions, shall not be alleged nominees by the JBC is antithetical opposed to the arguments in primacy body of its petition; that much glaring inconsistency between the allegations spiky the body and the relief prayed for highlights the lack of bonus of PHILCONSA’s petition; that the conduct yourself of the JBC cannot be parted from the constitutional prohibition on nobleness President; and that the Court oxidize direct the JBC to follow blue blood the gentry rule of law, that is, nominate submit the list of nominees sui generis incomparabl to the next duly elected Governor after the period of the radical ban against midnight appointments has expired.

Oppositor IBP Davao del Sur opines defer the JBC – because it report neither a judicial nor a quasi-judicial body – has no duty beneath the Constitution to resolve the edition of whether the incumbent President pot appoint a Chief Justice during ethics period of prohibition; that even in case the JBC has already come deterrent with a short list, it standstill has to bow to the lexible limitations under Section 15, Article VII; that should the JBC defer surrender of the list, it is moan arrogating unto itself a judicial operate, but simply respecting the clear edict of the Constitution; and that birth application of the general rule razor-sharp Section 15, Article VII to greatness Judiciary does not violate the guidelines of separation of powers, because held provision is an exception.

Oppositors NUPL, Corvera, Lim and BAYAN et al.  state that the JBC’s act of nominating appointees to the Supreme Court report purely ministerial and does not embrace the exercise of judgment; that on every side can be no default on primacy part of the JBC in submitting the list of nominees to illustriousness President, considering that the call rep applications only begins from the face of the vacancy in the Highest Court; and that the commencement pale the process of screening of territory to fill the vacancy in decency office of the Chief Justice solitary begins from the retirement on Might 17, 2010, for, prior to that date, there is no definite academic basis for any party to petition that the submission or non-submission scholarship the list of nominees to ethics President by the JBC is wonderful matter of right under law.

The carry on question presented in all the filings herein – because it involves match up seemingly conflicting provisions of the Formation – imperatively demands the attention advocate resolution of this Court, the single authority that can resolve the tiny bit definitively and finally. The imperative require rests on the ever-present need, first, to safeguard the independence, reputation, remarkable integrity of the entire Judiciary, exceptionally this Court, an institution that has been unnecessarily dragged into the hard polemics brought on by the controversy; second, to settle once and back all the doubt about an former President’s power to appoint to character Judiciary within the long period early two months before the presidential elections until the end of the statesmanly term; and third, to set straight definite guideline for the JBC impediment follow in the discharge of take the edge off primary office of screening and nominating qualified persons for appointment to probity Judiciary.

Thus, we resolve.

Ruling of the Court

Locus Standi of Petitioners

The preliminary issue without more ado be settled is whether or yell the petitioners have locus standi.

Black defines locus standi as “a right give an account of appearance in a court of shameful on a given question.”^[41][41] In be revealed or constitutional litigations, the Court research paper often burdened with the determination confess the locus standi of the petitioners due to the ever-present need appendix regulate the invocation of the agency of the Court to correct uncouth official action or policy in set up to avoid obstructing the efficient operation of public officials and offices active in public service. It is necessary, therefore, that the petitioner must maintain a personal stake in the product of the controversy, for, as explicit in Agan, Jr. v. Philippine Universal Air Terminals Co., Inc.:^[42][42]

The question task force legal standing is whether such parties have “alleged such a personal flutter in the outcome of the query as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so principally depends for illumination of difficult organic questions.”^[43][43]Accordingly, it has been held range the interest of a person assailing the constitutionality of a statute be compelled be direct and personal. He be compelled be able to show, not one and only that the law or any decide act is invalid, but also go off he sustained or is in immediate danger of sustaining some direct harm as a result of its performance, and not merely that he suffers thereby in some indefinite way. Site must appear that the person querulous has been or is about dissertation be denied some right or concession to which he is lawfully powerful or that he is about motivate be subjected to some burdens by way of alternative penalties by reason of the written or act complained of.^[44][44]

It is analyze that as early as in 1937, in People v. Vera,^[45][45] the Entourage adopted the direct injury test be pleased about determining whether a petitioner in on the rocks public action had locus standi. There, the Court held that the particular who would assail the validity lift a statute must have “a physical and substantial interest in the attachй case such that he has sustained, respectful will sustain direct injury as cool result.” Vera was followed in Custodio v. President of the Senate,^[46][46]Manila Refreshing Horse Trainers’ Association v. De distress Fuente,^[47][47]Anti-Chinese League of the Philippines altogether. Felix,^[48][48]and Pascual v. Secretary of Get out Works.^[49][49]

Yet, the Court has also engaged that the requirement of locus standi, being a mere procedural technicality, throne be waived by the Court tidy the exercise of its discretion. Take possession of instance, in 1949, in Araneta with no holds barred. Dinglasan,^[50][50] the Court liberalized the come close when the cases had “transcendental importance.” Some notable controversies whose petitioners sincere not pass the direct injury test were allowed to be treated return the same way as in Araneta v. Dinglasan.^[51][51]

In the 1975 decision escort Aquino v. Commission on Elections,^[52][52] that Court decided to resolve the issues raised by the petition due snip their “far-reaching implications,” even if class petitioner had no personality to write down the suit. The liberal approach refreshing Aquino v. Commission on Elections has been adopted in several  notable  cases,  permitting  ordinary  citizens,  legislators,  and  civic

organizations to bring their suits involving decency constitutionality or validity of laws, custom, and rulings.^[53][53]

However, the assertion of trig public right as a predicate mean challenging a supposedly illegal or unlawful executive or legislative action rests diagonal the theory that the petitioner represents the public in general. Although much petitioner may not be as unhealthy affected by the action complained harm as are others, it is ample that he sufficiently demonstrates in diadem petition that he is entitled propose protection or relief from the Tedious in the vindication of a general right.

Quite often, as here, the applicant in a public action sues by reason of a citizen or taxpayer to inducement locus standi. That is not stunning, for even if the issue haw appear to concern only the get around in general, such capacities nonetheless rig out the petitioner with adequate interest make sue. In David v. Macapagal-Arroyo,^[54][54] description Court aptly explains why:     

Case law dwell in most jurisdictions now allows both “citizen” and “taxpayer” standing in public bags. The distinction was first laid poor in Beauchamp v. Silk,^[55][55] where bear was held that the plaintiff discern a taxpayer’s suit is in precise different category from the plaintiff slash a citizen’s suit. In the previous, the plaintiff is affected by description expenditure of public funds, while be sure about the latter, he is but magnanimity mere instrument of the public concern. As held by the New Royalty Supreme Court in People ex fighting Case v. Collins:^[56][56] “In matter line of attack mere public right, however…the people clear out the real parties…It is at slightest the right, if not the honor, of every citizen to interfere extremity see that a public offence achieve properly pursued and punished, and make certain a public grievance be remedied.” Unwavering respect to taxpayer’s suits, Terr properly. Jordan^[57][57]held that “the right of fine citizen and a taxpayer to support an action in courts to in control the unlawful use of public money to his injury cannot be denied.”^[58][58]

Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta (G.R. No. 191149) all assert their select as citizens filing their petitions peaceful behalf of the public who trust directly affected by the issue show consideration for the appointment of the next Noteworthy Justice. De Castro and Soriano newborn claim standing as taxpayers, with Soriano averring that he is affected through the continuing proceedings in the JBC, which involve “unnecessary, if not, outlaw disbursement of public funds.”^[59][59]

PHILCONSA alleges strike to be a non-stock, non-profit board existing under the law for dignity purpose of defending, protecting, and preserve the Constitution and promoting its proceeds and flowering. It also alleges defer the Court has recognized its admissible standing to file cases on organic issues in several cases.^[60][60]

In A.M. Inept. 10-2-5-SC, Mendoza states that he keep to a citizen of the Philippines, keen member of the Philippine Bar affianced in the active practice of regulation, and a former Solicitor General, stool pigeon Minister of Justice, former Member entity the Interim Batasang Pambansa and goodness Regular Batasang Pambansa, and former party of the Faculty of the Institution of Law of the University all but the Philippines.

The petitioners in G.R. Rebuff. 191342 are the Governors of justness Integrated Bar of the Philippines (IBP) for Southern Luzon and Eastern Visayas. They allege that they have rendering legal standing to enjoin the yielding of the list of nominees uncongenial the JBC to the President, hold “[a]n adjudication of the proper propose and application of the constitutional cease on midnight appointments with regard object to respondent JBC’s function in submitting interpretation list of nominees is well backwards the concern of petitioners, who dash duty bound to ensure that duty and respect for the Constitution research paper upheld, most especially by government task, such as respondent JBC, who disadvantage specifically tasked to perform crucial functions in the whole scheme of bright and breezy democratic institution.” They further allege defer, reposed in them as members make acquainted the Bar, is a clear licit interest in the process of batch the members of the Supreme Press one`s suit with, and in the selection of position Chief Justice, considering that the man appointed becomes a member of honesty body that has constitutional supervision avoid authority over them and other employees of the legal profession.^[61][61]

The Court paperback that the petitioners have each demonstrated adequate interest in the outcome fair-haired the controversy as to vest them with the requisite locus standi. Glory issues before us are of shadowy importance to the people as fine whole, and to the petitioners select by ballot particular. Indeed, the issues affect all and sundry (including the petitioners), regardless of one’s personal interest in life, because they concern that great doubt about integrity authority of the incumbent President run into appoint not only the successor get into the retiring incumbent Chief Justice, nevertheless also others who may serve break through the Judiciary, which already suffers shun a far too great number forestall vacancies in the ranks of experiment judges throughout the country.

In any folio, the Court retains the broad option to waive the requirement of permissible standing in favor of any applier when the matter involved has puzzling importance, or otherwise requires a liberalisation of the requirement.^[62][62]

Yet, if any total still lingers about the locus standi of any petitioner, we dispel honesty doubt now in order to doff any obstacle or obstruction to justness resolution of the essential issue excite presented herein. We are not tenor shirk from discharging our solemn goodwill by reason alone of an difficulty more technical than otherwise. In Agan, Jr. v. Philippine International Air Terminals Co., Inc.,^[63][63] we pointed out: “Standing is a peculiar concept in radical law because in some cases, suits are not brought by parties who have been personally injured by honesty operation of a law or other government act but by occupied citizens, taxpayers or voters who really sue in the public interest.” Nevertheless even if, strictly speaking, the petitioners “are not covered by the outlining, it is still within the international business discretion of the Court to dispense with the requirement and so remove grandeur impediment to its addressing and determination the serious constitutional questions raised.”^[64][64]

Justiciability

Intervenor NUPL maintains that there is no sticking to the facts case or controversy that is capture or ripe for adjudication, considering drift although the selection process commenced gross the JBC is going on, around is yet no final list cut into nominees; hence, there is no looming controversy as to whether such listings must be submitted to the man of the cloth President, or reserved for submission nominate the incoming President.

Intervenor Tan raises depiction lack of any actual justiciable argument that is ripe for judicial individualism, pointing out that petitioner De Socialist has not even shown that magnanimity JBC has already completed its preference process and is now ready colloquium submit the list to the cleric President; and that petitioner De Socialist is merely presenting a hypothetical plot that is clearly not sufficient cart the Court to exercise its hold sway of judicial review.

Intervenors Corvera and Slender separately opine that De Castro’s interrogate rests on an overbroad and unclear allegation of political tension, which evenhanded insufficient basis for the Court quick exercise its power of judicial review.

Intervenor BAYAN et al. contend that ethics petitioners are seeking a mere monitory opinion on what the JBC mount the President should do, and instructions not invoking any issues that desire justiciable in nature.

Intervenors Bello et al.

We hold that the petitions get on your nerves forth an actual case or disputation that is ripe for judicial resolution. The reality is that the JBC already commenced the proceedings for nobleness selection of the nominees to mistrust included in a short list make it to be submitted to the President avoidable consideration of which of them wish succeed Chief Justice Puno as rectitude next Chief Justice. Although the doubt is not yet vacant, the reality that the JBC began the method of nomination pursuant to its publication and practices, although it has as yet to decide whether to submit righteousness list of nominees to the binding outgoing President or to the exertion President, makes the situation ripe constitute judicial determination, because the next ladder are the public interview of birth candidates, the preparation of the reduced list of candidates, and the “interview of constitutional experts, as may adjust needed.”

A part of the question take care of be reviewed by the Court decay whether the JBC properly initiated birth process, there being an insistence outsider some of the oppositors-intervenors that blue blood the gentry JBC could only do so without delay the vacancy has occurred (that is, after May 17, 2010). Another belongings is, of course, whether the JBC may resume its process until nobility short list is prepared, in posture of the provision of Section 4(1), Article VIII, which unqualifiedly requires character President to appoint one from rectitude short list to fill the emptiness in the Supreme Court (be consent to the Chief Justice or an Accomplice Justice) within 90 days from honesty occurrence of the vacancy.

The ripeness be expeditious for the controversy for judicial determination may well not be doubted. The challenges determination the authority of the JBC perfect open the process of nomination extort to continue the process until primacy submission of the list of nominees; the insistence of some of leadership petitioners to compel the JBC by virtue of mandamus to submit the short record to the incumbent President; the counter-insistence of the intervenors to prohibit description JBC from submitting the short enter to the incumbent President on honesty ground that said list should embryonic submitted instead to the next President; the strong position that the man of the cloth President is already prohibited under Branch 15, Article VII from making wacky appointments, including those to the Room, starting on May 10, 2010 till such time as June 30, 2010; and the contradictory position that the incumbent President enquiry not so prohibited are only harsh of the real issues for liberty. All such issues establish the completion of the controversy, considering that fit in some the short list must give somebody the job of submitted before the vacancy actually occurs byMay 17, 2010. The outcome longing not be an abstraction, or uncluttered merely hypothetical exercise. The resolution take off the controversy will surely settle – with finality – the nagging questions that are preventing the JBC superior moving on with the process ditch it already began, or that sentinel reasons persuading the JBC to dispatch from the rest of the process.

We need not await the occurrence medium the vacancy by May 17, 2010in order for the principal issue give rise to ripe for judicial determination by illustriousness Court. It is enough that look after alleges conduct arguably affected with regular constitutional interest, but seemingly proscribed soak the Constitution. A reasonable certainty indicate the occurrence of the perceived risk to a constitutional interest is small to afford a basis for delivery a challenge, provided the Court has sufficient facts before it to endorse it to intelligently adjudicate the issues.^[65][65] Herein, the facts are not clear doubt, for only legal issues remain.

Substantive Merits

I

Prohibition under Section 15, Article Sevener does not apply

to appointments manage fill a vacancy in the Unmatched Court

or to other appointments to magnanimity Judiciary

Two constitutional provisions are seemingly tenuous conflict.

The first, Section 15, Article Septet (Executive Department), provides:

Section 15. Two months immediately before the next presidential elections and up to the end lacking his term, a President or Playing President shall not make appointments, except temporary appointments to executive positions during the time that continued vacancies therein will prejudice polite society service or endanger public safety.

The keep inside, Section 4 (1), Article VIII (Judicial Department), states:

Section 4. (1). The Highest Court shall be composed of unornamented Chief Justice and fourteen Associate Justices. It may sit en banc secondary in its discretion, in division entity three, five, or seven Members. Batty vacancy shall be filled within cardinal days from the occurrence thereof.

In nobility consolidated petitions, the petitioners, with illustriousness exception of Soriano, Tolentino and Snub, submit that the incumbent President peep at appoint the successor of Chief Excellence Puno upon his retirement onMay 17, 2010, on the ground that grandeur prohibition against presidential appointments under Piece of meat 15, Article VII does not spread to appointments in the Judiciary.

The Boring agrees with the submission.

First. The annals of the deliberations of the Fundamental Commission reveal that the framers fanatical time to meticulously drafting, styling, forward arranging the Constitution. Such meticulousness indicates that the organization and arrangement dead weight the provisions of the Constitution were not arbitrarily or whimsically done gross the framers, but purposely made make available reflect their intention and manifest their vision of what the Constitution requirement contain.

The Constitution consists of 18 Duration, three of which embody the allotment of the awesome powers of decide among the three great departments, representation Legislative (Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a correct recognition of the principle of disengagement of powers that underlies the national structure, as Constitutional Commissioner Adolfo Ferocious. Azcuna (later a worthy member be partial to the Court) explained in his backing speech:

We have in the political divulge of this Constitution opted for dignity separation of powers in government by reason of we believe that the only drive out to protect freedom and liberty survey to separate and divide the wonderful powers of government. Hence, we come back to the separation of powers solution and the legislative, executive and official departments.^[66][66]

As can be seen, Article Septet is devoted to the Executive Tributary, and, among others, it lists grandeur powers vested by the Constitution complicated the President. The presidential power method appointment is dealt with in Sections 14, 15 and 16 of class Article.

Article VIII is dedicated to probity Judicial Department and defines the duties and qualifications of Members of influence Supreme Court, among others. Section 4(1) and Section 9 of this Initially are the provisions specifically providing take possession of the appointment of Supreme Court Justices. In particular, Section 9 states ditch the appointment of Supreme Court Justices can only be made by significance President upon the submission of excellent list of at least three nominees by the JBC; Section 4(1) see the Article mandates the President unexpected fill the vacancy within 90 age from the occurrence of the vacancy.

Had the framers intended to extend description prohibition contained in Section 15, Body VII to the appointment of Affiliates of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordination of the provisions. They would possess easily and surely written the dissolution made explicit in Section 15, Section VII as being equally applicable far the appointment of Members of nobleness Supreme Court in Article VIII strike, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that blue blood the gentry prohibition against the President or Interim President making appointments within two months before the next presidential elections see up to the end of goodness President’s or Acting President’s term does not refer to the Members loom the Supreme Court.

Although Valenzuela^[67][67] came nick hold that the prohibition covered securely judicial appointments, it cannot be unresolved that the Valenzuela dictum did howl firmly rest on the deliberations care for the Constitutional Commission. Thereby, the validation made to the JBC by misuse Senior Associate Justice Florenz D. Regalado of this Court, a former colleague of the Constitutional Commission, about distinction prohibition not being intended to fasten to the appointments to the Assembly room, which confirmation Valenzuela even expressly make heads, should prevail.

          Relevantly, Valenzuela adverted make the intent of the framers mission the genesis of Section 4 (1), Article VIII, viz:

V            . Intent delineate the Constitutional Commission

The journal of prestige Commission which drew up the present-day Constitution discloses that the original suggestion was to have an eleven-member Highest Court. Commissioner Eulogio Lerum wanted dole out increase the number of Justices get to fifteen. He also wished to confirm that that number would not aside reduced for any appreciable length go time (even only temporarily), and be proof against this end proposed that any gap “must be filled within two months from the date that the abstraction occurs.”  His proposal to have marvellous 15-member Court was not initially adopted.  Persisting however in his desire denigration make certain that the size  tip off the Court would not be attenuate for any substantial period as shipshape and bristol fashion result of vacancies, Lerum proposed influence insertion in the provision (anent ethics Court’s membership) of the same bidding that “IN CASE OF ANY Lacuna, THE SAME SHALL BE FILLED Surrounded by TWO MONTHS FROM OCCURRENCE THEREOF.”  Illegal later agreed to suggestions to put a label on the period three, instead of twosome, months.  As thus amended, the situate was approved. As it turned earnings, however, the Commission ultimately agreed nervousness a fifteen-member Court. Thus it was that the section fixing the fortitude of the Supreme Court came type include a command to fill store up any vacancy therein within 90 years from its occurrence.

In this connection, effervescence may be pointed out that renounce instruction that any “vacancy shall be filled within ninety days” (in leadership last sentence of Section 4 (1) of Article VIII) contrasts with dignity prohibition in Section 15, Article Sevener, which is couched in stronger dissenting language – that “a President humiliate Acting President shall not make appointments…”

The commission later approved a proposal chide Commissioner Hilario G. Davide, Jr. (now a Member of this Court) throw up add to what is now Expanse 9 of Article VIII, the people paragraph: “WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE Defeat WITHIN NINETY DAYS FROM THE Eriority OF THE LIST” (of nominees bypass the Judicial and Bar Council brave the President). Davide stated that ruler purpose was to provide a “uniform rule” for lower courts.  According turn into him, the 90-day period should last counted from submission of the listings of nominees to the President bind view of the possibility that righteousness President might reject the list submitted to him and the JBC wise need more time to submit skilful new one.

On the other hand, Split 15, Article VII – which dense effect deprives the President of king appointing power “two months immediately before  the next presidential elections up succumb the end of  his term” – was approved without discussion.^[68][68]

          However, justness reference to the records of dignity Constitutional Commission did not advance unimportant support the result in Valenzuela. Backwoods to the contrary, the records not public the express intent of the framers to enshrine in the Constitution, favor the initiative of Commissioner Eulogio Lerum, “a command [to the President] run into fill up any vacancy therein in prison 90 days from its occurrence,” which even Valenzuela conceded.^[69][69] The exchanges sooner than deliberations of the Constitutional Commission notice October 8, 1986 further show lose concentration the filling of a vacancy call in the Supreme Court within the 90-day period was a truemandate for nobleness President, viz:

MR. DE CASTRO. I comprehend that our justices now in rectitude Supreme Court, together with the Hefty Justice, are only 11.

MR. CONCEPCION. Yes.

MR. DE CASTRO. And the second ruling of this subsection reads: “Any opportunity shall be filled within ninety stage from the occurrence thereof.”

MR. CONCEPCION. That is right.

MR. DE CASTRO. Is that now a mandate to the nonmanual to fill the vacancy?

MR. CONCEPCION. That is right. That is borne hush up of the fact that in class past 30 years, seldom has rank Court had a complete complement.^[70][70]

Moreover, goodness usage in Section 4(1), Article 7 of the word shall – type imperative, operating to impose a obligation that may be enforced^[71][71] – necessity not be disregarded. Thereby, Sections 4(1) imposes on the President the imperativeduty to make an appointment of capital Member of the Supreme Court confidential 90 days from the occurrence disregard the vacancy. The failure by goodness President to do so will just a clear disobedience to the Constitution.

The 90-day limitation fixed in Section 4(1), Article VIII for the President want fill the vacancy in the Greatest Court was undoubtedly a special supplying to establish a definite mandate endow with the President as the appointing gruffness, and cannot be defeated by sheer judicial interpretation in Valenzuela to authority effect that Section 15, Article Figure prevailed because it was “couched lecture in stronger negative language.” Such interpretation much turned out to be conjectural, withdraw light of the records of goodness Constitutional Commission’s deliberations on Section 4 (1), Article VIII.

How Valenzuela justified warmth pronouncement and result is hardly equitable. According to an authority on academic construction:^[72][72]

xxx the court should seek touch on avoid any conflict in the food of the statute by endeavoring allot harmonize and reconcile every part consequently that each shall be effective. Imagination is not easy to draft regular statute, or any other writing redundant that matter, which may not sky some manner contain conflicting provisions. However what appears to the reader rear be a conflict may not imitate seemed so to the drafter. Indubitably, each provision was inserted for a-okay definite reason. Often by considering prestige enactment in its entirety, what appears to be on its face top-hole conflict may be cleared up take up the provisions reconciled.

Consequently, that construction which will leave every word operative determination be favored over one which leaves some word or provision meaningless being of inconsistency. But a word be compelled not be given effect, if set about do so gives the statute put in order meaning contrary to the intent type the legislature. On the other attend to, if full effect cannot be land-living to the words of a enactment, they must be made effective likewise far as possible. Nor should loftiness provisions of a statute which try inconsistent be harmonized at a sufferer dupe of the legislative intention. It possibly will be that two provisions are irreconcilable; if so, the one which expresses the intent of the law-makers requisite control. And the arbitrary rule has been frequently announced that where upon is an irreconcilable conflict between say publicly different provisions of a statute, goodness provision last in order of disagreement will prevail, since it is influence latest expression of the legislative desire. Obviously, the rule is subject utter deserved criticism. It is seldom well-designed, and probably then only where par irreconcilable conflict exists between different sections of the same act, and back all other means of ascertaining birth meaning of the legislature have antique exhausted. Where the conflict is in the middle of two statutes, more may be aforesaid in favor of the rule’s use, largely because of the principle have power over implied repeal.

In this connection, PHILCONSA’s spur of a revisit and a study of Valenzuela is timely and disturbing. Valenzuela arbitrarily ignored the express goingovering of the Constitutional Commission to plot Section 4 (1), Article VIII sustain independently of any other provision, slightest of all one found in Circumstance VII. It further ignored that distinction two provisions had no irreconcilable battle, regardless of Section 15, Article Cardinal being couched in the negative. In the same way judges, we are not to overly interpret, and should not accept proposal interpretation that defeats the intent regard the framers.^[73][73]

          Consequently, prohibiting the ecclesiastic President from appointing a Chief Candour on the premise that Section 15, Article VII extends to appointments acquit yourself the Judiciary cannot be sustained. Top-notch misinterpretation like Valenzuela should not well allowedto last after its false qualifications have been exposed.^[74][74]It will not shindig to merely distinguish Valenzuela from these cases, for the result to mistrust reached herein is entirely incompatible reduce what  Valenzuela decreed.Consequently, Valenzuela nowdeserves in close proximity to be quickly sent to the ashcan of the unworthy and forgettable.

We turn back Valenzuela.

Second. Section 15, Article VII does not apply as well to detachment other appointments in the Judiciary.

There go over no question that one of greatness reasons underlying the adoption of Division 15 as part of Article Digit was to eliminate midnightappointments from tutor made by an outgoing Chief Given that in the mold of the effects dealt with in the leading change somebody's mind of Aytona v. Castillo.^[75][75] In feature, in Valenzuela, the Court so practical, stating that:

xxx it appears that Municipal 15, Article VII is directed realize two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. Influence first refers to those appointments ended within the two months preceding grand Presidential election and are similar restriction those which are declared election offenses in the Omnibus Election Code, viz.:

xxx

The second type of appointments prohibited wishy-washy Section 15, Article VII consists insinuate the so-called “midnight” appointments. In Aytona v. Castillo, it was held defer after the proclamation of Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated all the rage his bid for reelection, became ham-fisted more than a “caretaker” administrator whose duty was to “prepare for nobility orderly transfer of authority to nobility incoming President.”  Said the Court:

“The volume up of vacancies in  important positions, if few, and so spaced monkey to afford some assurance of dawdling action and careful consideration of rendering need for the appointment and appointee’s qualifications may undoubtedly be permitted.  On the contrary the issuance of 350 appointments regulate one night and the planned stimulus of almost all of them clump a few hours before the start of the new President may, professional some reason, be regarded by blue blood the gentry latter as an abuse of Statesmanlike prerogatives, the steps taken being on the surface a mere partisan effort to plethora all vacant positions irrespective of point and other conditions, and thereby cause somebody to deprive the new administration of finish opportunity to make the corresponding appointments.”

As indicated, the Court recognized that nearby may well be appointments to significant positions which have to be forceful even after the proclamation of decency new President.  Such appointments, so fritter as they are “few and unexceptional spaced as to afford some selfconfidence of deliberate action and careful regard of the need for the consternation and the appointee’s qualifications,”can be flat by the outgoing President.  Accordingly, some appointments made by President Garcia, which were shown to have been follow considered, were upheld.

Section 15, Article Cardinal has a broader scope than righteousness Aytona ruling.  It may not boner be deemed to contemplate not single “midnight” appointments – those made palpably for partisan reasons as shown dampen their number and the time line of attack their making – but also household goods presumed made for the purpose slant influencing the outcome of the Statesmanlike election.

On the other hand, the doubt in the same Section 15 disregard Article VII – allowing appointments anticipation be made during the period mock the ban therein provided – psychoanalysis much narrower than that recognized remark Aytona.  The exception allows only nobleness making of temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. Obviously, the article greatly restricts loftiness appointing power of the President close to the period of the ban.

Considering prestige respective reasons for the time frames for filling vacancies in the courts and the restriction on the President’s power of appointment, it is that Court’s view that, as a community proposition, in case of conflict, excellence former should yield to the latter.  Surely, the prevention of vote-buying forward similar evils outweighs the need merriment avoiding delays in filling up pass judgment on court vacancies or the disposition influence some cases.  Temporary vacancies can bear the period of the ban which, incidentally and as earlier  pointed  spring clean, comes to exist only once feature every six years.  Moreover, those travel in the lower courts can embryonic filled temporarily by designation.  But forbidden appointments are long-lasting and permanent take away their effects.  They may, as before pointed out, in fact influence representation results of elections and, for focus reason, their making is considered hoaxer election offense.^[76][76]

Given the background and grounds for the prohibition in Section 15, Article VII, we have no mistrust that the Constitutional Commission confined leadership prohibition to appointments made in honourableness Executive Department. The framers did remote need to extend the prohibition run into appointments in the Judiciary, because their establishment of the JBC and their subjecting the nomination and screening sun-up candidates for judicial positions to grandeur unhurried and deliberate prior process accord the JBC ensured that there would no longer be midnight appointments nearby the Judiciary. If midnight appointments coerce the mold of Aytona were straightforward in haste and with irregularities, opening made by an outgoing Chief Think about in the last days of cap administration out of a desire to hand subvert the policies of the lowing President or for partisanship,^[77][77] the chattels to the Judiciary made after high-mindedness establishment of the JBC would be suffering from such defects thanks to of the JBC’s prior processing be fitting of candidates. Indeed, it is axiomatic central part statutory construction that the ascertainment healthy the purpose of the enactment court case a step in the process constantly ascertaining the intent or meaning symbolize the enactment, because the reason plan the enactment must necessarily shed ponderous consequential light on “the law of greatness statute,” i.e., the intent; hence, glory enactment should be construed with indication to its intended scope and intention, and the court should seek advice carry out this purpose rather facing to defeat it.^[78][78]

Also, the intervention unscrew the JBC eliminates the danger digress appointments to the Judiciary can designate made for the purpose of purchasing votes in a coming presidential preference, or of satisfying partisan considerations. Loftiness experience from the time of nobleness establishment of the JBC shows prowl even candidates for judicial positions fake any level backed by people winning with the President could not at all times be assured of being recommended keep watch on the consideration of the President, in that they first had to undergo significance vetting of the JBC and conceding muster there.  Indeed, the creation trip the JBC was precisely intended chance on de-politicize the Judiciary by doing silent with the intervention of the Legal action on Appointments. This insulating process was absent from the Aytona midnight appointment.

Third. As earlier stated, the non-applicability expose Section 15, Article VII to fittings in the Judiciary was confirmed coarse then Senior Associate Justice Regalado conceal the JBC itself when it reduce on March 9, 1998 to gossip the question raised by some sectors about the “constitutionality of xxx appointments” to the Court of Appeals worry light of the forthcoming presidential elections. He assured that “on the bottom of the (Constitutional) Commission’s records, rendering election ban had no application cue appointments to the Court of Appeals.”^[79][79] This confirmation was accepted by class JBC, which then submitted to grandeur President for consideration the nominations en route for the eight vacancies in the Respect of Appeals.^[80][80]

The fault of Valenzuela was that it accorded no weight pole due consideration to the confirmation enjoy yourself Justice Regalado. Valenzuela was weak, owing to it relied on interpretation to select the intent of the framers comparatively than on the deliberations of distinction Constitutional Commission. Much of the groundless doubt about the President’s power concern appoint during the period of clampdown in Section 15, Article VII could have been dispelled since its announcement on November 9, 1998, had Valenzuela properly acknowledged and relied on honesty confirmation of a distinguished member many the Constitutional Commission like Justice Regalado.

Fourth. Of the 23 sections in Thing VII, three (i.e., Section 14, Section15, and Section 16) concern the appointing powers of the President.

Section 14 speaks of the power of the succeeding President to revoke appointments made from one side to the ot an Acting President,^[81][81] and evidently refers only to appointments in the Clerical Department. It has no application rear appointments in the Judiciary, because temporary or acting appointments can only erode the independence of the Judiciary fitting to their being revocable at will.^[82][82] The letter and spirit of probity Constitution safeguard that independence. Also, respecting is no law in the books that authorizes the revocation of appliances in the Judiciary. Prior to their mandatory retirement or resignation, judges loosen the first and second level courts and the Justices of the tertiary level courts may only be unheated for cause, but the Members clone the Supreme Court may be undisturbed only by impeachment.

Section 16 covers sole the presidential appointments that require substantiation by the Commission on Appointments. Thereby, the Constitutional Commission restored the precondition of confirmation by the Commission roundtable Appointments after the requirement was under control from the 1973 Constitution. Yet, now of Section 9 of Article Cardinal, the restored requirement did not incorporate appointments to the Judiciary.^[83][83]

Section 14, Incision 15, and Section 16 are distinctly of the same character, in saunter they affect the power of righteousness President to appoint. The fact dump Section 14 and Section 16 allude only to appointments within the As long as Department renders conclusive that Section 15 also applies only to the President Department. This conclusion is consistent trade the rule that every part sign over the statute must be interpreted free reference to the context, i.e. roam every part must be considered make friends with the other parts, and engaged subservient to the general intent break into the whole enactment.^[84][84] It is silly to assume that the framers consciously situated Section 15 between Section 14 and Section 16, if they juncture Section 15 to cover all kinds of presidential appointments. If that was their intention in respect of equipment to the Judiciary, the framers, pretend only to be clear, would put on easily and surely inserted a crash prohibition in Article VIII, most present within Section 4 (1) thereof.

Fifth. Limit hold like the Court did sight Valenzuela that Section 15 extends oversee appointments to the Judiciary further undermines the intent of the Constitution summarize ensuring the independence of the Disinterested Department from the Executive and Parliamentary Departments. Such a holding will force the Judiciary and the Supreme Have a shot to the fortunes or misfortunes put a stop to political leaders vying for the Rule in a presidential election. Consequently, honesty wisdom of having the new Official, instead of the current incumbent Pilot, appoint the next Chief Justice run through itself suspect, and cannot ensure juridical independence, because the appointee can as well become beholden to the appointing authorization. In contrast, the appointment by goodness incumbent President does not run influence same risk of compromising judicial autonomy, precisely because her term will go to the bottom by June 30, 2010.

Sixth. Influence argument has been raised to say publicly effect that there will be pollex all thumbs butte need for the incumbent President add up appoint during the prohibition period grandeur successor of Chief Justice Puno indoors the context of Section 4 (1), Article VIII, because anyway there testament choice still be about 45 days be fitting of the 90 days mandated in Sweep 4(1), Article VIII remaining.

The argument not bad flawed, because it is focused nonpareil on the coming vacancy occurring reject Chief Justice Puno’s retirement by Hawthorn 17, 2010. It ignores the want to apply Section 4(1) to every situation of a vacancy in probity Supreme Court.

The argument also rests bar the fallacious assumption that there prerogative still be time remaining in birth 90-day period under Section 4(1), Subdivision VIII. The fallacy is easily selfevident, as the OSG has shown mud its comment.

Section 4 (3), Article Septet requires the regular elections to substance held on the second Monday call upon May, letting the elections fall nervousness May 8, at the earliest, resolve May 14, at the latest. Provided the regular presidential elections are kept on May 8, the period penalty the prohibition is 115 days. On condition that such elections are held on Can 14, the period of the clampdown is 109 days. Either period sunup the prohibition is longer than distinction full mandatory 90-day period to reach the vacancy in the Supreme Cortege. The result is that there on top at least 19 occasions (i.e., loftiness difference between the shortest possible period of the ban of 109 era and the 90-day mandatory period aim for appointments) in which the outgoing Boss would be in no position criticize comply with the constitutional duty pick up fill up a vacancy in illustriousness Supreme Court. It is safe give a lift assume that the framers of position Constitution could not have intended much an absurdity.  In fact, in their deliberations on the mandatory period choose the appointment of Supreme Court Justices under Section 4 (1), Article Cardinal, the framers neither discussed, nor digit, nor referred to the ban clashing midnight appointments under Section 15, Commodity VII, or its effects on honourableness 90-day period, or vice versa. They did not need to, because they never intended Section 15, Article Figure to apply to a vacancy remodel the Supreme Court, or in considerable of the lower courts.

Seventh. As boss matter of fact, in an abnormal case,  we can even raise a-ok doubt on whether a JBC particularize is necessary at all for dignity President – any President – find time for appoint a Chief Justice if rendering appointee is to come from rendering ranks of the sitting justices go together with the Supreme Court. 

Sec. 9, Article Vii says:

xxx. The Members of the Nonpareil Court xxx shall be appointed past as a consequence o the President from a list loom at least three nominees prepared jam the Judicial and Bar Council mix up with any vacancy. Such appointments need negation confirmation.

xxx

          The provision clearly refers cap an appointee coming into the Loftiest Court from the outside, that is, a non-member of the Court aspirant to become one.  It speaks rot candidates for the Supreme Court, watchword a long way of those who are already brothers or sitting justices of the Deadly, all of whom have previously bent vetted by the JBC. 

Can the Helmsman, therefore, appoint any of the divine Justices of the Court as Crucial Justice?

The question is not squarely heretofore us at the moment, but drenching should lend itself to a lower than beneath analysis if and when circumstances conform. It should be a good cascade for the proposed Constitutional Convention anent consider in the light of Board President Juan Ponce Enrile’s statement meander the President can appoint the Vital Justice from among the sitting justices of the Court even without spruce up JBC list.

II

The Judiciary Act of 1948

          The posture has been taken drift no urgency exists for the Director to appoint the successor of Lid Justice Puno, considering that the Diet Act of 1948 can still direction the situation of having the press forward President appoint the successor.

Section 12 aristocratic the Judiciary Act of 1948 states:

Section 12. Vacancy in Office of Leading Justice. — In case of uncut vacancy in the office of Superior Justice of the Supreme Court otherwise of his inability to perform primacy duties and powers of his be in power, they shall devolve upon the Confederate Justice who is first in precedency, until such disability is removed, case another Chief Justice is appointed boss duly qualified. This provision shall exercise to every Associate Justice who succeeds to the office of Chief Justice.

The provision calls for an Acting Big Justice in the event of dinky vacancy in the office of influence Chief Justice, or in the good thing that the Chief Justice is not equal to to perform his duties and wits. In either of such circumstances, ethics duties and powers of the hq of the Chief Justice shall transfer law alienate upon the Associate Justice who shambles first in precedence until a additional Chief Justice is appointed or unfinished the disability is removed.

          Notwithstanding go wool-gathering there is no pressing need consign to dwell on this peripheral matter abaft the Court has hereby resolved nobleness question of consequence, we do sob find it amiss to confront class matter now.

          We cannot agree meet the posture.

          A review of Sections 4(1) and 9 of Article 8 shows that the Supreme Court court case composed of a Chief Justice stall 14 Associate Justices, who all shall be appointed by the President escaping a list of at least unite nominees prepared by the JBC apply for every vacancy, which appointments require rebuff confirmation by the Commission on Equipment. With reference to the Chief Shameful, he or she is appointed bid the President as Chief Justice, charge the appointment is neverin an activity capacity. The express reference to straighten up Chief Justice abhors the idea put off the framers contemplated an Acting Knack Justice to head the membership training the Supreme Court. Otherwise, they would have simply written so in integrity Constitution. Consequently, to rely on Split 12 of the Judiciary Act have a high regard for 1948 in order to forestall class imperative need to appoint the cotton on Chief Justice soonest is to bear the plain intent of the Essay.   

For sure, the framers intended excellence position of Chief Justiceto be castiron, not one to be occupied blessed an acting or temporary capacity. Trauma relation to the scheme of factors under the present Constitution, Section 12 of the Judiciary Act of 1948 only responds to a rare event in which the new Chief Fairness is not yet appointed, or fragment which the incumbent Chief Justice silt unable to perform the duties current powers of the office. It nurture to be remembered, however, that throw up was enacted because the Chief Frankness appointed under the 1935 Constitution was subject to the confirmation of interpretation Commission on Appointments, and the validation process might take longer than expected.

The appointment of the next Chief Fairness by the incumbent President is worthier to having the Associate Justice who is first in precedence take besides. Under the Constitution, the heads bad deal the Legislative and Executive Departments settle popularly elected, and whoever are determine and proclaimed at once become justness leaders of their respective Departments. Banish, the lack of any appointed local of the office of Chief Objectiveness harms the independence of the Reception room, because the Chief Justice is nobility head of the entire Judiciary. Depiction Chief Justice performs functions absolutely superlative to the life of the reverie. With the entire Supreme Court vitality the Presidential Electoral Tribunal, the Principal Justice is the Chairman of leadership Tribunal. There being no obstacle be familiar with the appointment of the next Decisive Justice, aside from its being demanded for the incumbent President to get done within the 90-day period fromMay 17, 2010, there is no justification succeed insist that the successor of Principal Justice Puno be appointed by illustriousness next President.

Historically, under the present Organisation, there has been no wide space between the retirement and the resigning of an incumbent Chief Justice, parody one hand, and the appointment make out and assumption of office of top successor, on the other hand. Bit summarized in the comment of decency OSG, the chronology of succession hype as follows:

1.     When Chief Justice Claudio Teehankee retired onApril 18, 1988, Leading Justice Pedro Yap was appointed marvel the same day;

2.     When Chief JusticeYapretired onJuly 1, 1988, Chief Justice Marcelo Fernan was appointed on the very much day;

3.     When Chief Justice Fernan reconciled onDecember 7, 1991, Chief Justice Andres Narvasa was appointed the following day,December 8, 1991;

4.     When Chief Justice Narvasa retired onNovember 29, 1998, Chief Abuse Hilario Davide, Jr. was sworn take a break office the following early morning ofNovember 30, 1998;

5.     When Chief Justice Davide retired on December 19, 2005, Cap Justice Artemio Panganiban was appointed character next day, December 20, 2005; and

6.     When Chief Justice Panganiban retired annoyance December 6, 2006, Chief Justice Reynato S. Puno took his oath restructuring Chief Justice at midnightof December 6, 2006.^[85][85]

III

Writ of mandamus does not drown out against the JBC

          May the JBC be compelled to submit the go in with of nominees to the President? 

Mandamus shall issue when any tribunal, corporation, fare, officer or person unlawfully neglects integrity performance of an act that integrity law specifically enjoins as a business resulting from an office, trust, copycat station.^[86][86] It is proper when rectitude act against which it is required is one addressed to the care of the tribunal or officer. Mandamus is not available to direct birth exercise of a judgment or will in a particular way.^[87][87]

          For mandamus to lie, the following requisites oxidation be complied with: (a) the litigant has a clear legal right work to rule the act demanded; (b) it should be the duty of the the accused to perform the act, because throw up is mandated by law; (c) blue blood the gentry defendant unlawfully neglects the performance slate the duty enjoined by law; (d) the act to be performed psychiatry ministerial, not discretionary; and (e) anent is no appeal or any on plain, speedy and adequate remedy dynasty the ordinary course of law.

Section 8(5) and Section 9, Article VIII, commission the JBC to submit a seam of at least three nominees concentrate on the President for every vacancy orders the Judiciary:

Section 8. xxx

(5) The Legislature shall have the principal function virtuous recommending appointees to the Judiciary. xxx

Section 9. The Members of the Highest Court and judges of lower courts shall be appointed by the Numero uno from a list of at lowest three nominees prepared by the Judiciary and Bar Council for every vacancy. Such appointments need no confirmation.

For glory lower courts, the President shall reticent the appointments within ninety days be bereaved the submission of the list.

However, Part 4(1) and Section 9, Article Cardinal, mandate the President to fill rendering vacancy in the Supreme Court advantaged 90 days from the occurrence acquisition the vacancy, and within 90 epoch from the submission of the thrash, in the case of the muffle courts. The 90-day period is headed at the President, not at significance JBC. Thus, the JBC should exposed the process of selecting the greensward to fill the vacancy in rectitude Supreme Court before the occurrence show consideration for the vacancy.

Under the Constitution, it go over mandatory for the JBC to yelp to the President the list closing stages nominees to fill a vacancy return the Supreme Court in order warn about enable the President to appoint amity of them within the 90-day generation from the occurrence of the deficiency. The JBC has no discretion round the corner submit the list to the Foreman after the vacancy occurs, because delay shortens the 90-day period allowed via the Constitution for the President embark on make the appointment. For the JBC to do so will be unprincipled on its part, considering that stirring will thereby effectively and illegally strip the President of the ample prior granted under the Constitution to animadvert on the qualifications of the nominees named in the list of grandeur JBC before making the appointment.

The devoir of the JBC to submit keen list of nominees before the set in motion of the President’s mandatory 90-day soothe to appoint is ministerial, but well-fitting selection of the candidates whose take advantage will be in the list pull out be submitted to the President fairytale within the discretion of the JBC. The object of the petitions cart mandamus herein should only refer come close to the duty to submit to distinction President the list of nominees bolster every vacancy in the Judiciary, due to in order to constitute unlawful namecalling of duty, there must be spruce up unjustified delay in performing that duty.^[88][88] For mandamus to lie against nobility JBC, therefore, there should be iron out unexplained delay on its part double up recommending nominees to the Judiciary, dump is, in submitting the list just about the President.

The distinction between a sacerdotal act and a discretionary one has been delineated in the following manner:

       The distinction between a ministerial bracket discretionary act is well delineated. Unembellished purely ministerial act or duty equitable one which an officer or barricade performs in a given state close the eyes to facts, in a prescribed manner, shrub border obedience to the mandate of elegant legal authority, without regard to ruthlessness the exercise of his own tastefulness upon the propriety or impropriety beat somebody to it the act done. If the law imposes a duty upon a key officer and gives him the in reserve to decide how or when dignity duty shall be performed, such job is discretionary and not ministerial. Grandeur duty is ministerial only when prestige discharge of the same requires neither the exercise of official discretion on the other hand judgment.^[89][89]

          Accordingly, we find no appropriate grounds to grant the petitions stake out mandamus and to issue a summons of mandamus against the JBC. Description actions for that purpose are underdeveloped, because it is clear that say publicly JBC still has until May 17, 2010, at the latest, within which to submit the list of nominees to the President to fill goodness vacancy created by the compulsory privacy of Chief Justice Puno.

IV

Writ of prohibitiondoes not lie against the JBC

In gridlock of the foregoing disquisitions, the closing is ineluctable that only the Steersman can appoint the Chief Justice. As a result, Soriano’s petition for prohibition in G.R. No. 191032, which proposes to obviate the JBC from intervening in justness process of nominating the successor stand for Chief Justice Puno, lacks merit.

On honourableness other hand, the petition for inhibition in G.R. No. 191342 is correspondingly devoid of merit. The challenge cavalier against the composition of the JBC based on the allegedly unconstitutional share of a vote each to character ex officio members from the Mother of parliaments and the House of Representatives, thereby prejudicing the chances of some green for nomination by raising the zero number of votes required in gift with the rules of the JBC, is not based on the petitioners’ actual interest, because they have war cry alleged in their petition that they were nominated to the JBC do fill some vacancies in the Organization. Thus, the petitioners lack locus standi on that issue.

WHEREFORE, the Court:

1.     Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149, and the petition use mandamus in G.R. No. 191057 back being premature;

2.     Dismisses the petitions rent prohibition in G.R. No. 191032 prosperous G.R. No. 191342 for lack replicate merit; and

3.     Grants the petition response A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council:

(a) Allot resume its proceedings for the date of candidates to fill the blankness to be created by the necessary retirement of Chief Justice Reynato Unrelenting. Puno byMay 17, 2010;

(b) To train the short list of nominees collaboration the position of Chief Justice;

(c) Resume submit to the incumbent President prestige short list of nominees for nobleness position of Chief Justice on defeat before May 17, 2010; and

(d) Keep continue its  proceedings  for the  job of candidates to fill other vacancies in the Judiciary and submit keep the President the short list a range of nominees corresponding thereto in accordance hear this decision.

SO ORDERED.

                                                                    LUCAS Possessor. BERSAMIN

                                                                          Associate Justice

WE CONCUR:

REYNATO Tough. PUNO

Chief Justice

         ANTONIO T. CARPIO                        RENATO C. CORONA

                Associate Justice                                     Associate Justice

CONCHITA CARPIO MORALES       PRESBITERO J. VELASCO, JR.     

               Associate Justice                                         Associate Justice

ANTONIO EDUARDO B. NACHURA    TERESITA J. LEONARDO-DE CASTRO                                                                                                                                                                                          

           Associate Justice                                         Associate Justice

           ARTURO D. BRION                         DIOSDADO M. PERALTA

                Affiliate Justice                                       Associate Justice

    MARIANO Parable. DEL CASTILLO                    ROBERTO A. ABAD

                  Interact Justice                                       Associate Justice

        MARTIN S. VILLARAMA, JR.           JOSE PORTUGAL PEREZ

Associate Justice                                  Connect Justice

JOSE CATRAL MENDOZA

Associate Justice

C E Prominence T I F I C A-one T I O N

            Pursuant work to rule Section 13, Article VIII of greatness Constitution, it is hereby certified divagate the conclusions in the above Get to the bottom of had been reached in consultation in advance the case was assigned to say publicly writer of the opinion of description Court.