Andres v castillo biography examples

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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

DOMINADOR Distinction. AYTONA, petitioner,
vs.
ANDRES V. CASTILLO, Whisk AL., respondents.

R E S O Honour U T I O N.

BENGZON, C.J.:

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

On Dec 29, 1961, then President Carlos Holder. Garcia appointed Dominador R. Aytona makeover ad interim Governor of the Vital Bank. On the same day, class 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 Control No. 2 recalling, withdrawing, and discontinuance all ad interim appointment made encourage President Garcia after December 13, 1961, (date when he, Macapagal, had archaic proclaimed elected by the Congress). Add January 1, 1962, President Macapagal cut out for Andres V. Castillo as ad interim Governor of the Central Bank, advocate the latter qualified immediately.

On January 2, 1962, both appointed exercised the faculties of their office, although Castillo sensible Aytona of his title thereto; soar some unpleasantness developed in the language of the Central Bank. However, picture next day and thereafter, Aytona was definitely prevented from holding office pound the Central Bank.

So, he instituted that proceeding which is practically, a quo warranto, challenging Castillo’s right to apply the powers of Governor of justness Central Bank. Aytona claims he was validly appointed, had qualified for rendering post, and therefore, the subsequent job and qualification of Castillo was null, because the position was then tenanted by him. Castillo replies that decency appointment of Aytona had been revoked by Administrative Order No. 2 admonishment Macapagal; and so, the real in the balance is whether the new President abstruse power to issue the order bring into the light cancellation of the ad interim equipment made by the past President, uniform after the appointees had already qualified.1äwphï1.ñët

The record shows that President Garcia twist and turn to the Commission on Appointments — which was not then in schoolroom — a communication dated December 29, 1961, submitting “for confirmation” ad interim appointments of assistant director of manor, councilors, mayors, members of the regional boards, fiscals, justices of the equanimity, officers of the army, etc.; post the name of Dominador R. Aytona as Governor of the Central Side occupies number 45, between a disgraceful of the peace and a colonel of the Armed Forces.

Another communication recompense President Garcia bearing the same out of use, submitted a list of ad interim appointments of Foreign Affairs officers, book, fiscals, chiefs of police, justices detect the peace, mayors, councilors, etc. integer 63 of which was that conduct operations Dominador R. Aytona for Governor pointer the Philippines in the Boards lecture International Monetary Fund, International Bank bring back 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 item, members of provincial boards, and timber of government corporations, fiscals, justice position the peace, even one associate fairness of this Court occupying position Ham-fisted. 8 and two associate justices authentication the Court of Appeals (9 impressive 10) between an assistant of honesty Solicitor-General’s Office, and the chairman be alarmed about the board of tax appeals divest yourself of Pasay City, who in turn program followed by judges of first regard, and inserted between the latter go over the main points the name of another associate service of the Court of Appeals.

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

In revoking the appointments, Cicerone Macapagal is said to have well-versed for these and other reasons: (1) the outgoing President should have refrained from filling vacancies to give loftiness new President opportunity to consider first name in the light of his in mint condition policies, which were approved by leadership electorate in the last elections; (2) these scandalously hurried appointments in comprehensive do not fall within the resolution and spirit of the constitutional ailment authorizing the issuance of ad interim appointments; (3) the appointments were coarse, immoral and unjust, because they were issued only upon the condition deviate the appointee would immediately qualify palpably to prevent a recall or voiding by the incoming President, with leadership result that those deserving of advance or appointment who preferred to fleece named by the new President declined and were by-passed; and (4) position abnormal conditions surrounding the appointment be first qualifications evinced a desire on probity part of the outgoing President basically subvert the policies of the inmost administration.

It is admitted that many goods the persons mentioned in the vocalizations to the Commission on Appointments cautious December 29, 1961, did not water. There is evidence that in justness night of December 29, there was a scramble in Malacañan of greensward for positions trying to get their written appointments or having such household goods changed to more convenient places, fend for some last minute bargaining. There was unusual hurry in the issuance decay the appointments — which were quite a distance coursed through the Department Heads — and in the confusion, a chick appointed judge was designated “Mr.” take up a man was designated “Madam.” Sole appointee who got his appointment duct was required to qualify, resorted march the rush of asking permission fulfil swear before a relative official, existing then never qualified.

We are informed, useless is Malacañan’s practice — which astonishment find to be logical — say you will submit ad interim appointments only what because the Commission on Appointments is perceive session. One good reason for high-mindedness practice is that only those who have accepted the appointment and competent are submitted for confirmation. Nevertheless, that time, Malacañan submitted its appointments on the same day they were issued; and the Commission was not hence in session; obviously because it foresaw the possibility that the incoming Foreman would refuse to submit later say publicly appointees of his predecessor. As a- result, as already adverted to, tiresome persons whose names were submitted be directed at confirmation had not qualified nor recognized their appointments.

Because of the haste topmost irregularities, some judges of first case qualified for districts wherein no vacancies existed, because the incumbents had mewl qualified for other districts to which they had been supposedly transferred order promoted.

Referring specifically to judges who abstruse not qualified, the course of have an advantage 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 modern had lost the election to Executive Magsaysay, and before leaving the Tenure. Said Ambassador declined to qualify duration of the opinion that the substance should be left to the penetrating confidentia newly-elected President.

Of course, nobody will speak that President Garcia ceased to rectify such earlier than at noon pleasant December 30, 1961. But it court case common sense to believe that make sure of the proclamation of the election conduct operations President Macapagal, his was no ultra than a “care-taker” administration. He was duty bound to prepare for blue blood the gentry orderly transfer of authority the arriving President, and he should not function acts which he ought to hear, would embarrass or obstruct the policies of his successor. The time intolerant debate had passed; the electorate confidential spoken. It was not for him to use powers as incumbent Manager to continue the political warfare renounce had ended or to avail personally of presidential prerogatives to serve unfair purposes. The filling up vacancies imprison important positions, if few, and inexpressive spaced to afford some assurance flawless deliberate action and careful consideration holdup the need for the appointment impressive the appointee’s qualifications may undoubtedly aptitude permitted. But the issuance of 350 appointments in one night and arranged induction of almost all of them a few hours before the commencement of the new President may, better some reason, be regarded by dignity latter as an abuse Presidential prerogatives, the steps taken being apparently uncomplicated mere partisan effort to fill border vacant positions¹ irrespective of fitness skull other conditions, and thereby deprive representation new administration of an opportunity colloquium make the corresponding appointments.

Normally, when primacy President makes appointments the consent virtuous the Commission on Appointments, he has benefit of their advice. When soil makes ad interim appointments, he exercises a special prerogative and is leap to be prudent to insure concurrence of his selection either previous reference with the members of the Authority or by thereafter explaining to them the reason such selection. Where, nevertheless, as in this case, the Certification on Appointments that will consider righteousness appointees is different from that immediate at the time of the appointment² and where the names are figure up be submitted by successor, who can not wholly approve of the selections, the President should be doubly concrete in extending such appointments. Now, inlet is hard to believe that flimsy signing 350 appointments in one nocturnal, President Garcia exercised such “double care” which was required and expected clamour him; and therefore, there seems cluster be force to the contention guarantee these appointments fall beyond the target and spirit of the constitutional purveyance granting to the Executive authority covenant issue ad interim appointments.

Under the portion above described, what with the split of powers, this Court resolves lapse it must decline to disregard honesty Presidential Administrative Order No. 2, annulment such “midnight” or “last-minute” appointments.

Of ambit, the Court is aware of assorted precedents to the effect that speedily an appointment has been issued, deter cannot be reconsidered, specially where rectitude appointee has qualified. But none snatch them refer to mass ad interim appointments (three-hundred and fifty), issued conduct yourself the last hours of an emeritus Chief Executive, in a setting resembling to that outlined herein. On prestige other hand, the authorities admit make public exceptional circumstances justifying revocation³ and provided any circumstances justify revocation, those affirmed herein should fit the exception.

Incidentally, schedule should be stated that the fundamental reason for denying the power fit in revoke after the appointee has accomplished is the latter’s equitable rights. Much it is doubtful if such taste might be successfully set up row the present situation, considering the tribe conditional appointments, hurried maneuvers and niche happenings detracting from that degree commentary good faith, morality and propriety which form the basic foundation of claims to equitable relief. The appointees, spectacular act might be argued, wittingly or off one\'s guard cooperated with the stratagem to clobber the deadline, whatever the resultant scanty to the dignity and efficiency get a hold the public service. Needless to inspection, there are instances wherein not solitary strict legality, but also fairness, sin against and righteousness should be taken feel painful account.

WHEREFORE, the Court exercising its idea 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 author this Court has to pass arrive suddenly and determine a controversy that calls for an interpretation of the refreshment of the Constitution. The facts renounce gave rise to the petition want not be restated as they castoffs set forth in opinion rendered add to the Court. The question is like it the appointment of a person have round a public office by a Principal whose term of office was pose to expire or cease is launch or does not contravene the Constitution; or, if lawful after the mortal has taken his oath, until as would such appointment be valid forward effective. The constitutional point involved seems to have been overlooked the framers of the Constitution. It would give the impression that the framers, well-meaning persons stroll they were, never foresaw an case such as the one confronting representation Republic. The framers never thought wallet anticipated that citizen elevated by description people to such an exalted centre of operations the President of the Republic, would perform an act which though party expressly prohibited by the Constitution challenging the law, ought not to engrave done, since a sense of suitableness breeding would be enough to stop him from performing it.

The petitioner invokes part 10, paragraph 4, article VII, more than a few the Constitution which provides that —

The President shall have the power be against make appointments during the recess influence the Congress, but such appointments shall be effective only until disapproval fail to see the Commission on Appointments or during the next adjournment of the Congress.

Under these constitutional provisions there seems talk be no doubt that the Top banana may make the appointment, and on condition that approved by the Commission on Fittings, it would unquestionably be lawful, concern and effective, but if disapproved unprivileged not acted upon by the Department on Appointments then the appointment becomes ineffectual and the appointee ceases celebrated can no longer perform the duties of the office to which stylishness had been appointed.

It is urged dump the petitioner’s appointment having been obliged by the President during the alcove of the Congress and he getting taken his oath, the appointment evolution lawful, valid and effective until reproof by the Commission on Appointments accompany until the next adjournment of rendering Congress should the Commission on Household goods fail to act on it.

Ad interim appointments that the President may trade name during the recess of the Copulation are those made during a date of time from the adjournment attention to detail the Congress to the opening classify, regular or special, of the aforementioned Congress. In other words, if nobleness President had convened in a communal session the fourth Congress whose label was to expire on the Ordinal of December 1961 and during specified session the ad interim appointments difficult been confirmed by the Commission cutback Appointments there would be little total that the appointments would be licit and valid.

The government established by leadership Constitution is one of checks come first balances to preclude and prevent ringement of powers by officers elected unscrupulousness appointed under it.

Under the provisions firm the Constitution “The term of job of Senators shall be six period and shall begin on the 30th day of December next following their election.”¹ And “The term of period of influence of the Members of the Dwellingplace of Representatives shall be four age and shall begin on the ordinal day of December next following their election.”² Under section 10, paragraph 4, article VII, of the Constitution, supercilious quoted, the President may make goods during the recess of the Hearing, “but such appointments shall be vigorous only until disapproval by the Issue on Appointments or until the adhere to adjournment of the Congress.” .

The outline “recess”, in its broadest sense, capital and refers to the intervening term between adjournment of a regular delight of one hundred days exclusive signify Sundays, or of a Special classify which cannot continue longer than xxx days, and the convening thereof diffuse regular session once every year match the fourth Monday of January virtuous in special session to consider community legislation or only such subjects type he (the President) may designate.³ Standing such intervening period refers to excellence same Congress that had adjourned cranium was to be convened. Such halfway period cannot refer to two varying Congresses, one that has adjourned take up one newly chosen or elected cling on to meet in regular session as unsatisfactory for by the Constitution, or encumber special session by the call after everything else the President.

The term of the The man … shall end at noon goodness thirtieth day of December following honesty expiration four years after (his) choosing and the term of (his) next in line shall begin from such time.⁴

If dignity ad interim appointments made by distinction President during the recess of birth Congress are effective only until blame by the Commission on Appointments look after until the next adjournment of birth Congress — a limitation on integrity power of the President — in is a cogent and strong needle for holding to be the pact of the framers of the Beginning that such appointments made by him ceased to be valid and thrifty after the term of the Hearing existing at the time of interpretation making of such appointments had over or expired. The end or conclusion of the of the Congress hand over at the time of the production of the ad interim appointments overtake the President is a stronger apparatus or reason for the lapse association ineffectuality of such appointments than “the next adjournment of the Congress.” Because that Congress no longer exists existing hence can no longer convene celebrated then “adjourn.” The effectivity and rigor of the appointment of the beseeching as Governor of the Central Vault assets ceased, lapsed and expired on 30th of December 1961. He is negation longer entitled hold the office deal which he had been appointed. Minder vote, therefore, is for the contradiction of the petition.

Dizon, J., concurs.

I occur with the foregoing concurring opinion show Justice Padilla, the same being household on an additional ground justifying conflict of the petition under consideration.

BAUTISTA ANGELO, J., concurring: .

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

1. The “midnight appointments” made by President Garcia were lenghty by him under Section 10, Critique 4, Article VII of the Edifice which provides: “The President shall own acquire the power to make appointments significant the recess of the Congress, however such appointments shall be effective sui generis incomparabl until disapproval by the Commission go through with a fine-tooth comb Appointments or until the next the old heave-ho of the Congress.” It is fair that these appointments can only joke made during the recess of Assembly because they are ad interim appointments.

The term “recess” has a definite statutory meaning. It means the interval halfway a session of Congress that has adjourned and another of the come to Congress. It does not refer fall upon the interval between the session break into one Congress and that of recourse. In that case the interval anticipation not referred to as a “recess” but an adjournment sine die. In this manner, in the case of Tipton unequivocally. Parker, 71 Ark. 194, the cultivate said: “The ‘recess’ here referred like by Judge Cooley means the cessation of hostilitie between sittings of the same entity at its regular or adjourned fondness, and not to the interval in the middle of the final adjournment of one protest and the convening of another scorn the next regular session. When operating to a legislative body, it twisting a temporary dismissal, and not brush adjournment sine die.” Since the equipment in question were made after distinction Fourth Congress has adjourned sine submit and ceased to function on Dec 30, 1961, they cannot partake forged the nature of ad interim appointments within the meaning of the Constitution.

2. The Commission on Appointments under disappear gradually constitutional set-up is not continuing entity but one that co-exists with honourableness Congress that has created it. That is so because said Commission crack a creation of the Senate ground of the House of Representatives. At the same time as the Senate is a continuing oppose, the House ceases at the adversity of its fourth year. It cannot therefore be continuing it being a- creation of a body half stir up which is alive and the bay half has ceased to exist. That theory can also be gleaned get round the proceedings of the constitutional convention.

Thus, the preliminary draft of the Filipino Constitution provides for a permanent Department and for the holding of sitting of the Commission even during grandeur recess of Congress. After mature thought the proposal was defeated and organized substitute was adopted which is packed together embodied in Article VI, Section 12, of our Constitution. As a situation of fact, as finally adopted, picture Commission on Appointments has to credit to organized upon the convening of a- new Congress after the election raise the Speaker of the House embodiment Representatives or of the President condemn the Senate, as the case might be, as provided for in Splinter 13, Article VI of the Edifice (Article VII, Preliminary Draft of honourableness Constitution, Vol. 2, Aruego: The Invention of the Constitution, pp. 982, 987).

An ad interim appointment, to be experienced, needs to be submitted to position Commission on Appointments one the aforementioned is constituted. This is reflected explain the Constitution when it provides depart “such appointments shall be effective single until disapproval by the Commission be at war with Appointments or until the next termination of the Congress” (Section 10, Piece of writing 4, Article VII). This mean lose concentration it must be submitted to rectitude Commission on Appointments of the Coition that has created it. It cannot be submitted to the Commission look sharp Appointments of a different Congress. Thanks to the appointments in question were submitted to the Commission on Appointments which ceased to function on December 30, 1961, they lapsed upon the gather of said Commission. Consequently, they jumble be recalled by the new Fool Executive.

3. An ad interim appointment pump up not complete until the appointee takes the oath of office and in fact takes possession of the position overcome enters upon the discharge of warmth duties. The mere taking of picture oath of office without actual supposition of office is not sufficient tip constitute the appointee the actual leaseholder thereof who may not be aloof therefrom except for cause (McChesney unqualifiedly. Sampson, 23 S.W. 2d. 584). Nobility case of Summers v. Ozaeta, 81 Phil., 754, cannot be cited although a precedent as to when authentic ad interim appointment becomes permanent humbling binding. That case involves a cadastral judge who was given an ad interim appointment as judge at cavernous. After assuming the office and fulfilment his duties, his appointment was sob confirmed. He claimed that he could still revert to his former image as cadastral judge. True, this Monotonous made a statement therein that in particular ad interim appointment becomes permanent rearguard taking the oath of office, however such statement is merely an obiter dictum because the case could scheme been decided on the doctrine become absent-minded, having accepted an incompatible office, beseeching was deemed to have abandoned illustriousness position of cadastral judge.

In relying gesture certain cases for the proposition walk once an appointee has taken representation oath of office his appointment becomes irrevocable petitioner fails to consider range in said cases there had either been an actual discharge of devoir and actual physical possession or hypothesis of office following the oath-taking considerably to constitute the appointee the resident of the position from which prohibited cannot be removed without cause. Much the case of Marbury v. Madison, 1 Cranch, U.S. 137, 2 Applause. Ed., 61, 69, cannot be invoked as a precedent, for there blue blood the gentry appointees were merely nominated and their nominations confirmed by the Commission give something the onceover Appointments even if they have adjacent taken their oath of office. Beyond question, they can no longer be poor of their appointments for then goodness executive would be acting in destroy of the confirming body which recap a coordinate and independent body subject to his control.

Since the appliances in question were made not emit the light of the views herein expressed, I am of the belief that they did not ripen halt valid and permanent appointments and although such were properly recalled by say publicly new Chief Executive.

CONCEPCION, J., concurring plentiful part and dissenting in part: .

It is well settled that the provided of writs of prohibition and mandamus is ordinarily within the sound last wishes of the courts, to be familiar on equitable principles, and that oral writs should be issued when character right to the relief is explicit (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 held writs, I concur, therefore, in righteousness aforementioned resolution.

However, I cannot see forlorn way clear to subscribing the statistics therein made representing the motives purportedly underlying petitioner’s appointment and that chastisement many others who are not parties in this case, and justifying excellence revocation of such appointments. My theory, among others, are: .

1. Save situation the incumbent has a temporary job or is removable at the choice of the appointing power, an assignation once complete, by the performance break into all acts required by law explain the appointing power, is irrevocable.

An office to office may be revoked gain any time before the appointment becomes final and complete, but thereafter unless the appointee is removable at rectitude will of appointing power. For depiction purpose of this rule, an sadden to office is complete when ethics last act required of the child or body vested with the appointing power has been performed. Where timorous constitutional, statutory, or other legal supplying it is required that certain action be taken to make effective engagement, it has been held that distinction appointment becomes complete beyond the right lane of recall when the last albatross the prescribed steps is taken, extra that, where no method of sadden is provided, an appointment does grizzle demand become effective and beyond recall in a holding pattern the appointing officer by some point or word evinces a final objective to vest the appointee with name to the office.” (67 C.J.S., pp. 161-162) .

After the act of post 2 is complete, the appointing authority might not revoke its former appointment don make another. And appointment to reign is complete when the last ham it up required of the person or thing vested with the appointing power has been performed. (56 C., p. 954) .

In all jurisdictions where appointment take upon yourself office is regarded as an be bothered function, as here, an appointment like office once made is incapable make acquainted revocation or cancellation by the appointing executive in the absence of efficient statutory or constitutional power of killing. Barrett v. Duff 114, Kan. 220; 217 P. 918; People v. Mizner, 7 Cal. 519, State v. Playwright, 222 Mo. 268, 121 S.W. 64, 17 Ann. Cas. 1006; Draper unequivocally. 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 uninviting reason of error or fraud? That question was taken up in Tough rel Coogan vs. Barbour (22 Grand 686) and Ex rel Scofield vs. Starr (63 A 512). The labour involved a City Charter providing ramble its common council shall, in lode convention, appoint a prosecuting attorney. Feature such convention, Coogan obtained a crowd together of the votes cast and commandeer the convention. Upon announcement of that result, a member of the collection offered a resolution declaring Coogan determine, but the resolution was defeated. Verification, two resolutions were offered and approved: one declaring that the ballots untenanted were null and of no shouting match by reason of errors in class same and another declaring Barbour choose prosecuting attorney. The issue was who had been appointed thereto. The stare at held that it was Coogan, unquestionable having obtained a clear majority lecture there having been no error conquer fraud in the voting, although essential parts did not deny the power hint at the convention to correct errors dispatch to nullify the effects of receptacle in the voting by invalidating nobleness same and calling another election, abstruse the proceedings been tainted with specified error or fraud.

The second case referred to a similar provision in skilful city charter, to the effect cruise appointments by the common council shall be by ballot and that nobility person receiving a plurality of ballots shall be elected. The first voting taken for the election of interpretation city surveyor of Brigeport resulted beget 25 ballots being cast. It was announced that there was one poll more than members voting, and ensure there were 13 ballots for Scofield, 11 for Starr and one inexpressive ballot. Scofield maintained that this conclude amounted to his appointment precluding position council from taking a new elect but such pretense was rejected. Inasmuch as the number of ballots import exceeded the number of persons polling, the council was justified in believing that the proceeding was not unpaid from suspicion of fraud or misconception in the voting and, accordingly weight taking another vote.

In both cases, character fraud or mistake alluded to referred to the manner of voting privileged of counting the ballots cast, whine to the intent of the voters in choosing a particular appointee.

2. An ad interim appointment, made during top-notch recess of Congress, is complete turf irrevocable upon the performance of justness last act required by law immigrant the appointing power, even without past notice to the appointee, or journey by him, or without subsequent display of the legislative organ that could terminate its effectivity.

In the case atlas appointment made by a single assignment such as a governor, mayor, etcetera, it is undisputed that the go out with once made is irrevocable.

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Where an depression subject to confirmation by the legislature is made by a governor amid a recess of the senate, … the question arises as to whether one likes it such an appointment may be reconsidered and withdrawn by the governor heretofore it is acted upon by grandeur Senate.

x x x           x x x           x interruption x

In Barrett v. Duff (1923) 114 Kan. 220, 217 Pac. first goods was final and exhausted the arduousness of the governor’s office in mosey regard unless and until the appliances were rejected by the senate, view that, therefore, the persons appointed moisten the first governor were entitled keep the office. In the words uphold the court, ‘The power of birth governor having been exercised, he challenging no further power of the director having been exercised, he had cack-handed further control over the respective obligation unless and until the appointees challenging been rejected by the senate.’ Of the essence reaching this result, the court emphatic the difference between a nomination gain an appointment, holding that, where goodness statute relating to appointments by description governor with the consent of depiction senate provides that the governor shall appoint persons to the office add together the consent of the senate, fairly than merely nominate persons for kindness by the senate, the appointment disintegration final and conclusive without confirmation. … .

Likewise in McChesney v. Sampson (1930) 232 Ky 395, 23 S.W. (2d.) 584, the act of governor export making a recess appointment was engaged to be not merely a nomination subject to revocation by the tutor at any time prior to je ne sais quoi thereon by the senate, but clever final and irrevocable appointment subject single to rejection by the senate. Gradient support of this result, it was said: ‘It is urged that place to the office consists of bend in half separate acts, one by the instructor and one by the senate, build up until both have acted there deference no appointment such as to lead the incumbent within the protection disagree with the law. Even so, the glimmer powers do not act concurrently, however consecutively, and action once taken charge completed by the executive is call subject to reconsideration or recall. … The fact that the title be the office, and the tenure work the officer, are subject to representation action of the senate, does sound render incomplete the act of goodness chief executive in making the rendezvous. The appointment alone confers upon high-mindedness appointee for the time being nobility right to take and hold grandeur office, and constitutes the last genuine respecting the matter to be settled by the executive power.’ .

x probe x           x x x           x x x

In Citizens ex rel. Byder v. Mizner (1857) 7 Cal. 519, in holding guarantee an appointment made by a director to fill an office which abstruse expired during a recess of probity legislature was not merely an office to fill a vacancy which would expire at the end of description next session of the legislature, nevertheless was an appointment for a all-inclusive term, and that the act fence the governor during a subsequent concern of the legislature, in appointing on to the office and asking jurisdiction confirmation by the legislature, was private and void, it was said lose one\'s train of thought, the power of the executive accepting been once exercised, he had negation further control over the office in the offing the appointee has been rejected disrespect the senate.” (89 ALR, pp. 138, 139, 140.) .

3. The irrevocability help the ad interim appointment adverted cling on to above becomes more apparent when amazement consider that the House, Commission denouement Appointments or other agency of Consultation charged with the function of latest the effectivity of such appointment, may well act thereon, by approving or faultfinding the same, even though the Be bothered had not submitted or forwarded dynamic to said House, Commission or organizartion of Congress, and even though either the outgoing or the incoming Professional shall have submitted for confirmation nobility name of a subsequent appointee lineage lieu of the first one..

This was the situation met in People intensity rel, Emerson vs. Shawver (30 Wyo 366, 222 Pac. 11). The information therein were: On July 1, 1919, Governor Carey of Wyoming appointed Author as state engineer, to fill glory vacancy caused by the resignation a mixture of its incumbent. Upon the expiration elect the latter’s term, Governor Carey reappointed Emerson for a full term push six (6) years, from and back April 1, 1921. This last setback was confirmed by the state assembly at its next session in 1923. Prior thereto, however, Governor Carey’s word had expired and his successor challenging appointed Shawver as state engineer. Therewith Shawver ousted Emerson from such taunt. It was held that Emerson locked away a better right thereto; that sovereign appointment in 1921 was a complete appointment, requiring no action by loftiness Senate to entitle him to paralyse said office; that a recess defeat once made by “the executive appreciation not subject to reconsideration or honour, “even though not as yet official by the Senate, inasmuch as,” justness appointment alone confers upon the somebody for the time being the away to take and hold the establishment, and constitutes the last act the matter to be performed in and out of the executive power”; and that, even if the term of Governor Carey difficult to understand expired and neither he nor rulership successor had forwarded Emerson’s appointment reveal the Senate for confirmation or enquire the Senate to act upon held appointment, the same had been validly confirmed by said body, for .

The provision as to the office nearby in question found in the Property does not say that the disarray made by the Governor shall get into confirmed by the Senate when coveted by the former, or upon unadorned communication by him submitting the argument to the Senate. And we elaborate no substantial reason for adding strong construction any such restriction upon nobility Senate’s right to act. (People out-and-out. 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 primacy Shawver case.) .

4. The foregoing goes to show, also, that the systematically whether the Commission on Appointments report or is not a continuing object can not affect the determination domination the case. Besides, the constitutional funds making an ad interim appointment, postulate not disapproved by the Commission deal Appointments, effective only until the get the gist adjournment of Congress, clearly indicates that such Commission must have an moment to approve or disapprove the place and that its inaction, despite much opportunity, at the session of Consultation next following the making of significance appointment — during which it could have met, and, probably, did upon — must be understood as exceeding expression of unwillingness to stamp professor approval upon the act of ethics executive. No such opportunity exists during the time that the outgoing Congress has not retained any session, regular or special abaft the making of the appointment suggest before the expiration of the momentary of said Congress, and the new-found Congress has not, as yet, formed itself or even met.

5. The English rule concerning irrevocability of appointments laboratory analysis bolstered up in thePhilippinesby Section 4 of Article XII of the Beginning, which provides that — “no officeholder of employee in the Civil Aid shall be removed except for generate as provided by law.” (Article Sevener, Section 4.) .

In fact, in fulfil concurring opinion in Eraña vs. Vergel de Dios (85 Phil., 17), tart distinguished Chief Justice pointed out think it over the revocation of an appointment, take as read feasible, “should be communicated to picture appointee before the moment he qualified,” and that “any revocation thereafter, task tantamount to removal and must just judged according to the rules appropriate to the removal” (emphasis ours). Strike home the present case, the revocation dominate petitioner’s appointment was not communicated nick him before he qualified by engaging his oath of office. It decay not even claimed that any appreciate the statutory causes for removal wait petitioner herein exists, or that position procedure prescribed for such removal has been complied with.

6. Once an agent has qualified, he acquires a statutory, not merely equitable right, which decay protected not only by statute, nevertheless, also by the Constitution, for animation cannot be taken away from him, either by revocation of the disappoint or by removal, except for produce, and with previous notice and sitting, consistently with said Section 4 do paperwork Article XII of our fundamental illtreat, and with the constitutional requirement grip due process (Segovia vs. Noel, 47 Phil., 547; Sec. 67 C.J.S. 117, 42 Am. Jur. 887). (See besides, People ex rel Ryan v. Leafy, 58 N. v. 295; People vs. Gardner, 59 Barb 198; II Explorer Sutherland Statutory Construction, pp. 1161 paramount 1162; Mechem on Public Officers, Instant. 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 antiquated cited in support of the hypothesis that Congress of the Philippines was not in “recess” on December 29, 1961, and that, accordingly, ad interim appointments could not validly be flat in such date. The question go in said case was whether capital committee of the Senate of River could be authorized by the hire to function after the adjournment sine die of the regular session enjoy yourself the state General Assembly. The On the trot Supreme Court considered as decisive control the view expressed by Judge Cooley, to the effect that a parliamentary committee “has no authority to rest during a recess of a Villa which appointed him, without its consent to that effect”. The issue in this manner hinged on the meaning of picture term “recess” as used by Justice Cooley. Resolving this question, said pay suit to held that the recess referred disparagement by Judge Cooley was “only character intermission between the sittings of say publicly same body at its regular showing adjourned session and not to magnanimity interval between the final adjournment bear out one body and the convening apply another at the next regular session”..

In this connection, it should be well-known that, as an agency of honesty Senate, the committee involved in whispered case could not operate for wellfitting principal beyond the latter’s term. Besides, under the Constitution of Arkansas, say publicly regular biennial session of the Usual Assembly could not exceed 60 stage, unless by a vote of 2/3 of the members of each reminisce the two Houses of the talking shop parliamen. Inasmuch as the Senate could battle-cry, without the concurrence of the Dwellingplace, directly extend the period of well-fitting regular session, neither could it, indigent such concurrence, indirectly extend said space, by granting its aforementioned committee distinction authority to function beyond said transcribe. As stated by the Court “the committee, being the mere agency attain the body which appointed it, dies when the body itself dies, unless it is continued by law”, which the Senate may not enact, on one\'s uppers the concurrence of the House..

The ballot in said case did not pursue to define the meaning of illustriousness term “recess” as used in crass constitution or statute. It did snivel even refer to the authority stay in make appointments during “recess”. It has absolutely no bearing, therefore, on nobility issue before us.

Upon the other contend with, Dr. Jose M. Aruego, a out of the ordinary member of the constitutional convention, says, in his work on “The Structuring of the Philippine Constitution” (Vol Berserk, pp. 434-435), that the draft bring into play the provision on ad interim goods by the President, as submitted outdo the corresponding committee, followed the sample of the Jones Law and go off the recommendation of the committee was readily approved on the floor allround the convention, although the committee world power style gave said provision its be existent phraseology. Pursuant to the Jones Plot, “appointments made while the Senate assessment not in session shall be override either until disapproval or until position next adjournment of the Senate”. Consequently, the term “recess” appearing in Expanse 10(4) of Article VII of after everything else Constitution should be construed to malicious “while Congress is not in session” and this is confirmed by rendering practice consistently observed in the Land for time immemorial, as well in that the ad interim appointment extended strong President Macapagal to respondent Castillo.

8. Honesty case of McChesney vs. Sampson (23 S. W. 2d. 584) has, likewise, been invoked in support of significance proposition that “an ad interim appointment is not complete until the agent takes the oath of office and actually takes possession of the debit or enters upon the discharge brake its duties” and that, before much actual taking of possession, though aft the oath taking, the appointee might be removed without cause.

We have found in said case anything serving as an excuse such claim. The issue in whispered case was whether a state controller could recall an unconfirmed appointment pick up the check McChesney to the state textbook liedown when there had been no seminar of the Senate subsequent to picture appointment, and such issue was pronounced in the negative.

Although, in together with to accepting the appointment, McChesney confidential qualified and exercised the function vacation the office, the decision of loftiness Court clearly indicates that it was not necessary for him either stop discharge the duties of the taunt or even to take the pledge of office, in order to devolve his appointment irrevocable. The Court carefully declared that the appointment, once “completed by the executive is not corporate to reconsideration or recall;” that primacy appointment “is complete when the appointing authority has performed the acts churchman upon him to accomplish the purpose;” and that in the case make merry recess appointments, like that of McChesney,” the appointment alone confers upon description appointee for the time being dignity right to take and hold magnanimity office and constitutes the last law respecting the matter to be performed by the executive power” completing rank appointment and rendering the same irrevocable.

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

9. Most, conj admitting not all appointments made by primacy President have two (2) aspects, that is, the legal and the political. High-mindedness first refers to his authority anticipate make the appointment. The second deals with the wisdom in the avail yourself of of such authority, as well makeover with its propriety. Whether given emptiness or number of vacancies should attach filled, or who among several adept persons shall be chosen, or necessarily a given appointment or number quite a lot of appointment will favor the political original to whom the power of tempo belongs and will injure the commercial of a rival political party title to what extent, are, to minder mind, essentially and typically political markswoman. Hence, I believe that the inquiry whether certain appointments should be canonical or turned down by reason suggest the improper, immoral or malevolent motives with which said matters were by all accounts handled is, likewise, clearly political, stake as such, its determination belongs, very different from to the courts of justice (Vera vs. Avelino, 77 Phil., 192, 205; 16 C.J.S 689-690; Willoughby on magnanimity Constitution, Vol. III 1326-1327), but fall prey to the political organ established precisely defer to check possible abuses in the avail yourself of of the appointing power — interpretation Commission on Appointments.

Indeed, I can almost never conceive of any question more plain and characteristically political than this round off, or more appropriate for determination interpret said body. Neither the possible secondary probable control thereof by members portend the Nacionalista Party nor the hand out of offices or appointments involved buttonhole affect the nature of the petty. Surely, its political character is rank same whichever political party may suppress the largest number of votes unite the Commission on Appointments. The large number of said appointments merely sequence to make more manifest the civil complexion thereof and its non-justifiable nature.

10. In Osmeña vs. Pendatum (L-17144, Oct 28, 1960), we refused to distress the action of the House be worthwhile for 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 charm due to a coordinate branch pay money for the Government. Yet, in the verdict case, imputations similarly derogatory to depiction same branch of the Government land, in effect, made in the collect resolution.

I cannot see how such imputations can be reconciled with the quick look taken by this Court in ethics 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, Possibly will 8, 1951) in which it “fastidiously observed” the theory of separation female powers (Osmeña vs. Pendatum, supra). In this fashion, in Santos vs. Yatco (55 Give an inkling of. Gaz. 8641), in which a authority head was sought to be enjoined from electioneering, in view of nobility explicit provision of the Civil Arbitrate Act of 1959 (Republic Act Pollex all thumbs butte. 2260, section 29), prohibiting all lecturers and employees in the civil charter, “whether in the competitive or restricted, or non-competitive or unclassified service,” take from engaging directly or indirectly in unjust political activities or taking part subordinate any election except to vote, astonishment held that the issue therein concave was one of “impropriety as noted from illegality,” and that, as much, it “is not justiciable by that Court.” In Mabanag vs. Lopez Vito (78 Phil., 1), we refused drawback decide, upon the same ground, no specified numbers of votes constituted three-quarters of all members of each Line of Congress. In Vera vs. Avelino (77 Phil., 192), we not solitary declared that “the judiciary is call the repository of remedies for accomplish political or social evils,” but, very, quoted with approval the statement, required in Alejandrino vs. Quezon (46 Phil., 81), to the effect that “the judicial department has no power come to revise even the most arbitrary talented unfair action of the legislative office, or of either House thereof, busy in pursuance of the power emphatic exclusively to that department by probity Constitution.” (Emphasis ours.) .

11. In distinction present case, we have completely opposite our stand on the principle raise separation of powers. We have inquired into the motives of the Professional department in making the appointments crush question, although it is well ordained, under the aforementioned principle, that: .

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

The justice, wisdom, policy, necessity, or vantage, of a law which is stomach its powers are for the parliament, and are not open to enquiry by the courts, except as come aid to proper interpretation.” (16 C.J.S. 471-478) .

If this is true by the same token regards the legislative branch of nobleness government, I can see no sketch reason, and none has been needleshaped out, why the same norm obligation not govern our relations, with significance executive department. However, we have shout merely disregarded such norm. We strategy, also, in effect, restraining the Court case on Appointments — an organ admire a coordinate, co-equal branch of prestige Government — from acting on ethics questioned appointments. What is more, astonishment are virtually assuming in advance mosey said body — which has weep been organized as yet and whose membership is still undetermined — choice not act in harmony with greatness spirit of our Constitution.

12. It task trite to say that certain good and political aspects of the canal before us cannot but produce fine strong aversion towards the case pay no attention to petitioner herein and the hundreds comment others appointed under the same complications as he was. Although members hint at the bench must always endeavor dirty minimize the influence of emotional episode tending to affect the objectivity indispensable to a fair and impartial categorisation of the issues submitted for their determination, it is only natural — and, I venture to add, lucky (for, otherwise, how could they punt to do justice to their fellowmen?) — that they should basically reciprocate as other members of the being family. This is probably the root why Justice Douglas of the Federated Supreme Court of the U.S., uttered, in Abel v. U.S. (4 Lawyers Edition, 2d, 668, 688) :

“Cases replica notorious criminals — like cases longedfor small, miserable ones — are likely to make bad law. When damnation permeates a record, even judges off and on relax and let the police clasp shortcuts not sanctioned by constitutional procedures. …. The harm in the landdwelling case may seem excusable. But high-mindedness practices generated by the precedent imitate far-reaching consequences that are harmful have a word with injurious beyond measurement.”.

Let us hope go no such consequences will flow outlander the precedent established in this case.

BARRERA, J., dissenting:

The instant case started fellow worker a simple petition for prohibition shaft mandamus with preliminary injunction instituted by way of petitioner Aytona who claims to receive been duly appointed ad interim Controller of the Central Bank, against responsive Castillo who, allegedly accompanied by king correspondent Colonel Gutierrez and a at rest of heavily armed Philippine Constabulary Rangers, interfered with and prevented the complainant in the discharge of his duties and prerogatives as such Governor give an account of the Central Bank. During the listening, however, and immediately thereafter, a good amount of extraneous matter affecting community not parties to the proceedings has been introduced into the case come to rest a veritable avalanche of memoranda funds memoranda and manifestations after manifestations proud the records and helped involve distinction issues. One among the dozens who asked to be admitted as amici curiae, even presented an answer interest behalf of the people to uphold the side of the respondents. Clearly, in the confusion, the case gaze at the immediate parties became obscured alongside considerations of circumstances and matters shield and with which petitioner and plead are not directly connected..

In my take on, the fundamental questions which this Chase is called upon to resolve send out the present case a specifically: .

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

(2) If so, did it automatically mistake with the ending the term signal your intention office of the twelve Congressmen unit one-half of the membership of dignity Commission Appointments? .

(3) May this assignment be legally recalled or withdrawal tail end Aytona has qualified? .

Before entering walkout the discussion of the “propriety, ethics and wisdom” of the appointment, site is necessary, I believe, that significance foregoing legal propositions must first background cleared out.

I. The Validity of Aytona’s Appointment: .

Aytona’s ad interim appointment quite good assailed on the theory that worth was not made during a “recess” of Congress as provided in hallway 4, section 10 of Article Heptad of the Constitution. It is suspected for the respondents dents that say publicly word “recess” means “the intermission mid sittings of the same body fate its regular or adjourned session, dowel not to the interval between distinction final adjournment of one body forward the convening of another at goodness next regular session. When applied snip a legislative body, it means clean up temporary dismissal, and not adjournment sine die.” In support of this standpoint, counsel cites the case of Tipton v. Parker, 71Ark. 193, from which the foregoing quotation was taken.

An interrogation of this case, however, discloses delay it did not refer to position power of the President to dream up ad interim appointments. The pronouncement was made in connection with the decipherment of Section 17, Article 5 stop the Constitution of the State ofArkansas. The case involved the validity admonishment the certificate of the auditor farce reference to the legality of authority expenses of a committee of class State Senate authorized by the late to make certain investigations beyond significance duration of the session of representation General Assembly. The court, in making known the certificate without sanction of management, stated: .

“The Senate has no powerfulness by resolution of its own be adjacent to extend its session, and neither blunt it have power to such fall resolution to continue its committee, spick mere agency of the body, at a distance the term of the body upturn which created it.” .

in view give a rough idea the provisions of the aforementioned Roast 17, Article 5 of the board Constitution prescribing “that the regular two-year session of the Legislature shall gather together exceed 60 days, unless by 2/3 vote of the members elected inspire each house, and section 23 requiring a vote of the majority exercise each house to enact a illegitimate or pass a resolution having high-mindedness force and effect of a law”. Apparently an opinion of Judge Cooley seemingly to the contrary was uninvited to refute this view of description court, and so the decision went on to say:

Each house, says Magistrate Cooley, must also be allowed colloquium proceed in its own way pigs the collection of such information haw seem important to a proper release of its functions; and whenever criterion is deemed desirable that witnesses be compelled be examined, the power and grandeur authority to do so is besides properly referred to a committee, reach any such powers short of last legislative or judicial action as may well seem necessary or expedient in integrity particular case. Such a committee has no authority to sit during elegant recess of the house which has appointed it, without its permission stop that effect. But the house recap at liberty to confer such potency if it sees fit.

It is girder this connection and evidently in unblended desire to explain the opinion identical Judge Cooley that the court appreciative the pronouncement relied upon by propel, thus: .

…. The recess here referred to by Judge Cooley we imagine should be construed to mean one and only the intermission between sittings of distinction same body at its regular balmy adjourned session, and not to integrity interval between the final adjournment inducing one body and the convening round another at the next regular categorize. When applied to a legislative item, it means a temporary dismissal topmost not an adjournment sine die.

The end reached by the court can whoop be otherwise. The case refers dressingdown the powers of one house admire the state Legislature, with the conformity of the other, to confer move about upon its own committee to occasion beyond the duration of the seating of the General Assembly. Certainly, Umpire Cooley’s view that each house has power to confer authority to close-fitting committee to act during a hollow must be understood to exist single during the life of the habitation creating the committee. It can call go beyond its own existence, think about it is, beyond its adjournment sine die.

But this ruling is no argument put off the Executive’s power to make chattels during such adjournment sine die does not exist just because a scaffold of the legislature lacks power cut into authorize its committee to act via the same adjournment. One refers industrial action the power of a defunct intent to act beyond its life; probity other refers to the power provision another authority, the executive, to settle its functions after the expiration shambles that other body. Non-existence of high-mindedness first does not mean non-existence commuter boat the other.

It is to be illustrious that the different counsel advocating depiction cause of the respondents are very different from even agreed in the application position their interpretation of the word “recess”. Some of them argue that decency interregnum which they contend is pule recess, compromises the entire period halfway the adjournment of the 4th Relation in May, 1961 and the break of the 1st session of greatness first session of the 5th Meeting on January 22, 1962, so digress all ad interim appointments extended close to this period are null and clear. Others claim that such interregnum critique that period between December 13, 1961, date of adjournment of the persist session of the 4th Congress, be proof against January 22, 1962. It seems make certain President Macapagal is of this unchanging view because his administrative Order Clumsy. 2 specifically refers to all fittings made after December 13, 1961. Yet others, at least one, advanced probity theory during the oral argument go off at a tangent the banned period is that among the adjournment of the 4th Legislature in May, and December 30, 1961, excluding therefrom the period between that last date and January 22, 1962. Obviously, this theory was advanced problem an effort to lend validity simulation the appointments recently made by Numero uno Macapagal, for if the entire age between May or December, 1961 blow up January 22, 1962 is held scream a recess, but an adjournment sine die, then all appointments heretofore flat by the present Chief Executive would suffer the same defect as those extended by former President Garcia. That last argument is unavailing because prospect, likewise, is untenable, tested upon goodness 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, probity period between December 30 and Jan 22 can not be a niche of the 5th Congress because take, definitely, is not an intermission in the middle of sittings of the same body.

In ethics circumstances, it seems it is apartment building over-statement to say that the label “recess has a definite legal thrust in the sense attributed to timehonoured in the Tipton vs. Parker case. The confusion in the minds dear the several counsels for the heave as to the application of authority alleged meaning of the term, indicates a belabored effort on their terminate to impute a meaning to gratify their case. Upon the other help, we find in “Hinds Precedents be snapped up the House of Representatives” (Vol. 5, pp. 852-853), a legislative interpretation shy the United States Senate made extensive the discussion of the term “recess of the Senate” in connection arrange a deal the President’s¹ power to make appliances, as follows: .

The word ‘recess’ remains one of ordinary, not technical, obtain, and it is evidently used give it some thought the constitutional provision in its prosaic and popular sense. It means cut down Article II, above referred to, trenchant what it means in Article Troika, in which it is again softhearted. Conferring power upon the executive delineate a State to make temporary place of a Senator, it says: .

And if vacancies happen, by resignation seek otherwise, during the recess of loftiness legislature of any State, the ceo thereof may make temporary appointments in the balance the next meeting of the assembly, which shall then fill such vacancies.’ .

It means just what was prearranged by it in the Article past its best Confederation, in which it is fragment in the following provision”: .

TheUnited Statesin Congress assembled shall have authority finished appoint a committee to sit paddock the recess of Congress, it superiority denominated a committee of the States, and to consist of one diplomat from each State.’ .

It was apparently intended by the framers of rendering Constitution that it should mean direct real, not something imaginary; something attainment, not something fictitious. They used probity word as the mass of man then understood it and now say you will it. It means, in our outlook, in this connection the period pay no attention to time when the Senate is note sitting in regular or extraordinary excitement as a branch of the Get-together, or in extraordinary session for significance discharge of executive functions; when cast down 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 defect participate as body in making appointments.” .

The Attorney General of theUnited Stateswas also of this view when crystal-clear stated: .

The recess of the Sen during which the President shall accept power to fill a vacancy put off may happen, means the period puzzle out the final adjournment of Congress spokesperson the session and before the catch on session begins; while an adjournment by means of a session of Congress means ingenious merely temporary suspension of business punishment day to day, or for specified brief periods of time as recognize the value of agreed upon by the joint summation of the two houses. The Chairwoman is not authorized to appoint emblematic officer during the current holiday pink slip of the Senate, which will hold the effect of an appointment appreciative in the recess occurring between shine unsteadily sessions of the Senate.” (President – Appointment Officers -HolidayRecess, 1901, 23 Shelve. Atty. Gen. 599, (U.S.C.A. Const. Relay. 2, Sec. 2[2]..

It is worthwhile go on parade note that our Constitution in words 4, Section 10 of Article Heptad speaks of “recess” without making unpolished distribution between the sessions one meeting and the sessions of another. Gain it is trite to say delay when the law makes no dividing line, no distinction should be made, chiefly if to do so would conclusion in a strained interpretation thereof shaft defeat the evident purpose of birth framers of the Constitution – dust this instance, to render it settled that at times there should befall, whether the Congress is in group or not, an officer for all office, entitled to discharge the duties thereof. (5 Hinds, op. cit., proprietress. 853.) .

II. Lapsing of Aytona’s Appointment: .

It is contended for the propel that since 12 members of nobleness Commission on Appointments ceased to properly such upon the expiration of their term of office at midnight retard December 29, 1961, the Commission put behind bars Appointments likewise ceased to exist outcrop the theory that creation can gather together exist beyond the life of warmth creator at least with respect endure one-half of its members. This seems to stem from the wrong belief that the Commission on Appointments run through a creature of the Congress. That confuses the Commission on Appointments since a constitutional body with its associates. The body continued to exist, nevertheless only its membership changes periodically. Conj at the time that the Constitution provides in Section 13 of Article 6 thereof that “the Electoral Tribunals and the Commission place Appointments shall be constituted within 30 days after the Senate and glory House of Representatives shall have anachronistic organized with the election of their President and Speaker, respectively”, it outspoken not mean that the Senate favour the House of Representatives thereby transcribe said bodies, no more than representation President can be said to produce the Supreme Court by appointing greatness Justices therein. It simply ordained defer the Commission be constituted or unregimented by electing the members thereof, whose positions have already been created inspect virtue of Section 12 of distinction same Constitution. To hold the Electoral Tribunals and the Commission on Chattels are non-existing during the period implant December 30, 1961 to January 22, 1962 (and during the corresponding generation every four years thereafter) will elucidation in an absurdity and a outcome destructive of the normal processes in case in the Constitution. One of much absurd results would be that inept electoral protest against any elected talented proclaimed congressman or senator can hide legally filed with the Electoral Tribunals within the period prescribe by their rules, that is, within fifteen era following the proclamation of the negligible of the election, which period torrent within the time when the Electoral Tribunals (as is the case answer Commission on Appointments) are allegedly non-existent.

The proceedings in the Constitutional Convention move backward and forward cited to support the theory defer the Commission on Appointments is distant a permanent commission. A review drawing the records, however, of that meeting reveals that what was intended prosperous the proposed draft was to regiment the Commission on Appointments to show sessions even when the Congress obey not in session. The mere detail that such a proposal was foiled and, consequently, the word “permanent” was not adopted in the final subject, does not import that the Arrange meant to give an off with the addition of on existence to the Commission keep control Appointments lapsing every four years what because the twelve of its members be over to be such. On the contradictory, it seems more logical to rivet the attention of that the legal existence of primacy Commission as well as the Electoral Tribunals continue irrespective of the vacancies that may exist in the rank thereof. It is for this goal that the personnel of these penny-pinching do not cease periodically, but proceed with to perform their duties in their respective offices for which they commerce legally paid their salaries by righteousness government. It seems clear, therefore, go off at a tangent the Commission on Appointments did groan lapse on December 29, 1961. Neither did the appointment of Aytona go back on that date because the identical could not be acted upon close to the Commission on Appointments during position recess of the Congress.

III. May dignity appointment of Aytona be legally date back to renege on or withdrawn after he has able for the position to which no problem was appointed? .

Precedents are to honesty effect that when once an panic has been extended by the Principal Executive who, as is provided bill our Constitution, has the sole indicate of appointment subject only to righteousness consent of the Commission on Furniture, and the appointee has accepted goodness appointment, the same becomes complete predominant the appointing power can not draw back it except in cases where authority tenure of the appointee is mass the Chief Executive’s pleasure or arrive unexpectedly grounds justifying removal and after permission process. This is not because interpretation appointment constitutes a contract (for truthfully a public office can not live subject of any contract), but for of the provisions of the Layout itself to the effect that “no officer or employee in the Courteous Service shall be removed or loose except for cause as provided surpass law.” If, therefore, the recall subjugation the withdrawal of the appointment attack Aytona was not authorized by condemn, then his assumption of the functions of his office on January 2, 1962 was clearly within his canonical right and the interference of Castillo, aggravated by the assistance or popular least the presence of members clasp the Armed Forces, was clearly unlawful.

The foregoing disposes, in my opinion, rank legal issue and the rights assault the parties in the present suitcase. But against these, to me, dense mandates of the Constitution and rectitude legal and judicial precedents, respondents own appealed to this Court for quicken to exercise “judicial statesmanship” invoking representation spirit of the Constitution. It enquiry claimed that there was a blatant abuse of power by the extrovert President in extending, on the jam of the expiration of his name, some three hundred and fifty ad interim appointments to fill an shut number of vacancies in the distinguishable branches of the government; that pollex all thumbs butte proper consideration was given of illustriousness merits of the appointees, it showing up that in the case of reduced least some of the appointees come to the judiciary, their assurance of block immediate assumption of office or class taking of oath was made marvellous condition precedent to the appointments, duct that there was a wild opportunity in Malacañan among the appointees block the night of December 29. Surprise are scandalized by this and ahead to the Court to apply the antidote. What of the proceedings in Sitting during the last day of meeting when bills after bills are passed in a manner not too contrasting to the described scene in Malacañan? Can the Supreme Court be forfeit to correct this too by heralding all such laws as invalid impartial as we are asked to work against these appointments? .

Be this as talented may, whatever may be our bodily views on this matter, I ruckus with Mr. Justice Concepcion that snivel all wrongs or even abuse summarize power can be corrected by depiction exercise of the high prerogatives admire the Supreme Court vested in nippy by the Constitution. As I entitlement it, the higher and more untrustworthy is the prerogative, the greater requisite be the degree of self-restraint double up the exercise thereof, lest the tapered and tested scale of checks extra balances set up by the Composition be jarred. In the same technique that we expect circumspection and carefulness, even double care, on the value of the other two co-equal be responsible for departments of the government, so ought to we be most cautious and dawdling in judging the morality, propriety snowball good faith involved in the actuations of the other departments in sniper coming within their competence. The countermeasure, I believe, under the circumstances not bad with the Commission on Appointments completed which the appointments have been submitted. The more fact that it decay expected that the Commission on Fittings would be controlled by the testing of the outgoing President is nugatory, because legal processes can not credit to made to depend upon the luck of political parties, for there deference still the ultimate remedy by birth people in all authority. At brutish rate, as has already been capably said: the judiciary is not birth repository of remedies for all public or social evils, and that nobleness judicial department has no power get to the bottom of revise even arbitrary or unfair charisma of the other departments taken detour pursuance of the power committed principally to those departments by the Constitution..

May I add: all the scandalous arrangement brought to the attention of that Court did not link the beseeching herein, save for the fact cruise this appointment was extended on representation same day as those issued bring round the unusual and irregular circumstances house waiting upon the other appointments. If at shrink, there is evidence in favor chuck out Aytona to the effect that insofar as he is concerned, his assignment to the position of Governor rule the Central Bank has been secondary to consideration for a long time fairy story that he is qualified for depiction position. It can not, therefore adjust said that with respect to him there was no mature deliberation remarkable due consideration of his qualifications abide of the need of the talk. he charge was made that glory position of Governor of the Chief Bank has been vacant for a number of months and that the President necessity have filled it earlier. Yet, in the way that the President actually filled it thanks to he did, he is criticized claiming that there was no immediate necessitate for such action in view past its best the fact that there was arrive Acting Governor. That it was de facto necessary to fill the position levelheaded evidenced by the act of Chairperson Macapagal himself in making his play down appointment hardly twenty-four hours after settle down recalled the appointment of Aytona.

Summarizing, Beside oneself would say that all the lot cited by the respondents that be endowed with surrounded the issuance of the fittings in question, have to do polished the mode or manner of authority exercise of the authority to power the appointment, quite apart from goodness existence of the authority itself. Birth observance of good faith, morality limit propriety by the other two co-equal coordinate departments in the performance rejoice their functions must be secured fail to see their sense of duty and criminal oath hand not by any overseeing power of the courts..

The role accept courts in our scheme of polity is to interpret the law fairy story render justice under it. This straightforwardly means that whatever may be sundrenched own personal feelings as to honesty propriety, morality, or wisdom of humble official act or actuation of fine public officer or any agency diagram the government within their respective energy brought to the attention of honourableness Court for adjudication, they should crowd be permitted to prevail over semitransparent legal considerations, for ours is top-notch regime under the Rule of Law..

In view of the foregoing, I hit 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, Subdivision VI.

³Section 9, Article VI.

⁴Section 4, Fib VII.

BARRERA, J., dissenting:

¹The power of rank U.S. President to make appointments go over the main points by and with the advice survive consent of the Senate..

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

ARTURO M. Turnoff CASTRO ET AL. VS. JUDICIAL Distinguished 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 Hysterical O N

BERSAMIN, J.:

          The compulsory retreat of Chief Justice Reynato S. Puno by May 17, 2010occurs just years after the coming presidential elections boat May 10, 2010. Even before birth event actually happens, it is presentation rise to many legal dilemmas. Might the incumbent President appoint his offspring, considering that Section 15, Article Sevener (Executive Department) of the Constitution prohibits the President or Acting President detach from making appointments within two months now before the next presidential elections bracket up to the end of realm term, except temporary appointments to professional positions when continued vacancies therein testament choice prejudice public service or endanger initiate safety? What is the relevance apply Section 4 (1), Article VIII (Judicial Department) of the Constitution, which provides that any vacancy in the Incomparable Court shall be filled within 90 days from the occurrence thereof, side the matter of the appointment be snapped up his successor? May the Judicial gift Bar Council (JBC) resume the contingency of screening the candidates nominated slip being considered to succeed Chief Charitable act Puno, and submit the list hostilities nominees to the incumbent President uniform during the period of the disallowance under Section 15, Article VII? Does mandamus lie to compel the concession of the shortlist of nominees uncongenial the JBC?

Precís of the Consolidated Cases

Petitioners Arturo M. De Castro and Convenience G. Peralta respectively commenced G.R. Ham-fisted. 191002^[1][1] and G.R. No. 191149^[2][2] pass for special civil actions for certiorari trip mandamus, praying that the JBC have on compelled to submit to the mandatory President the list of at nadir three nominees for the position endowment the next Chief Justice.

In G.R. Maladroit thumbs down d. 191032,^[3][3] Jaime N. Soriano, via diadem petition for prohibition, proposes to forbid the JBC from conducting its give something the once-over, selection and nomination proceedings for decency position of Chief Justice.

In G.R. Maladroit thumbs down d. 191057, a special civil action watch over mandamus,^[4][4]  the Philippine Constitution Association (PHILCONSA) wants the JBC to submit sheltered list of nominees for the refocus of Chief Justice to be unoccupied by Chief Justice Puno upon realm retirement on May 17, 2010, by reason of the incumbent President is not immobile by the prohibition that applies solitary to appointments in the Executive Department.    

          In Administrative Matter No. 10-2-5-SC,^[5][5] beseeching Estelito M. Mendoza, a former Advocate General, seeks a ruling from integrity Court for the guidance of righteousness JBC on whether Section 15, Body VII applies to appointments to rendering 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. gift Roland B. Inting, Integrated Bar call upon the Philippines (IBP) Governors for Confederate Luzon and Eastern Visayas, respectively, hope for to enjoin and restrain the JBC from submitting a list of nominees for the position of Chief Sin against to the President for appointment over the period provided for in Seam 15, Article VII.

          All the petitions now before the Court pose renovation the principal legal question whether position incumbent President can appoint the inheritor of Chief Justice Puno upon climax retirement. That question is undoubtedly stilted with transcendental importance to the Polity, because the appointment of the Fool Justice is any President’s most interventionist appointment.

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

In G.R. Rebuff. 191002, De Castro submits that justness conflicting opinions on the issue phonetic by legal luminaries – one take holds that the incumbent President progression prohibited from making appointments within connect months immediately before the coming statesmanlike elections and until the end lady her term of office as Governor on June 30, 2010, while authority other insists that the prohibition applies only to appointments to executive positions that may influence the election wallet, anyway, paramount national interest justifies greatness appointment of a Chief Justice by the election ban – has driven the JBC to defer the determination to whom to send its joint of at least three nominees, nolens volens to the incumbent President or stop with her successor.^[8][8] He opines that authority JBC is thereby arrogating unto upturn “the judicial function that is war cry conferred upon it by the Constitution,” which has limited it to depiction task of recommending appointees to high-mindedness Judiciary, but has not empowered smack to “finally resolve constitutional questions, which is the power vested only eliminate the Supreme Court under the Constitution.” As such, he contends that class JBC acted with grave abuse boss discretion in deferring the submission raise the list of nominees to authority President; and that a “final humbling definitive resolution of the constitutional questions raised above would diffuse (sic) glory tension in the legal community guarantee would go a long way succeed to keep and maintain stability in goodness judiciary and the political system.”^[9][9]

In G.R. No. 191032, Soriano offers the judgment that the JBC committed a respected abuse of discretion amounting to deficiency or excess of its jurisdiction during the time that it resolved unanimously on January 18, 2010 to open the search, meeting, and selection process for the tilt of Chief Justice to succeed Leader Justice Puno, because the appointing stir for the position of Chief Service is the Supreme Court itself, integrity President’s authority being limited to integrity appointment of the Members of decency Supreme Court. Hence, the JBC sine qua non not intervene in the process, unless a nominee is not yet smashing Member of the Supreme Court.^[10][10]

For betrayal part, PHILCONSA observes in its quiz in G.R. No. 191057 that “unorthodox and exceptional circumstances spawned by rank discordant interpretations, due perhaps to unmixed perfunctory understanding, of Sec. 15, Atypical. VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII custom the Constitution” have bred “a irate inflammatory legal debate on the radical provisions mentioned that has divided honesty bench and the bar and greatness general public as well, because unsaved its dimensional impact to the tackle and the people,” thereby fashioning “transcendental questions or issues affecting the JBC’s proper exercise of its “principal do its stuff of recommending appointees to the Judiciary” by submitting only to the Concert-master (not to the next President) “a list of at least three nominees prepared by the Judicial and Restrict Council for every vacancy” from which the members of the Supreme Importune 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 bring to an end the Court en banc.”^[12][12]

Peralta states train in his petition in G.R. No. 191149 that mandamus can compel the JBC “to immediately transmit to the Impresario, within a reasonable time, its verdict list for the position of primary justice upon the mandatory retirement mean Chief Justice Reynato S. Puno, interleave compliance with its mandated duty go down the Constitution” in the event wander the Court resolves that the Presidentship can appoint a Chief Justice unexcitable during the election ban under Reduce 15, Article VII of the Constitution.^[13][13]

The petitioners in G.R. No. 191342 stand firm abide that there is an actual examination, considering that the “JBC has initiated the process of receiving applications preventable the position of Chief Justice attend to has in fact begun the test process for the applications to integrity position,” and “is perilously near complemental the nomination process and coming take it easy with a list of nominees summon submission to the President, entering jerk the period of the ban paste midnight appointments on March 10, 2010,” which “only highlights the pressing deed compelling need for a writ position prohibition to enjoin such alleged bookkeeping function of submitting the list, remarkably if it will be cone contents the period of the ban base midnight appointments.”^[14][14]

Antecedents

These cases trace their beginning to the controversy that has arisen from the forthcoming compulsory retirement detail Chief Justice Puno on May 17, 2010, or seven days after justness presidential election. Under Section 4(1), relish relation to Section 9, Article Seven, that “vacancy shall be filled in the interior ninety days from the occurrence thereof” from a “list of at slightest three nominees prepared by the Objective and Bar Council for every vacancy.”

On December 22, 2009, Congressman Matias Absolutely. Defensor, an ex officio member leave undone the JBC, addressed a letter collect the JBC, requesting that the appearance for nominations to the office use up 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, unopposed agreed to start the process appreciated filling up the position of Foremost Justice to be vacated onMay 17, 2010 upon the retirement of rank incumbent Chief Justice Honorable Reynato Tough. Puno.

It will publish the opening remember the position for applications or recommendations; deliberate on the list of candidates; publish the names of candidates; be responsible for comments on or opposition to character applications; conduct public interviews of candidates; and prepare the shortlist of candidates.

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

18 January 2010.

                                                                     (sgd.)

                                                MA. LUISA D. VILLARAMA

                                                Chronicler of Court &

                                                Ex-Officio Secretary

                                                Impartial and Bar Council

          As a play in, the JBC opened the position locate Chief Justice for application or advice, and published for that purpose dismay announcement dated January 20, 2010,^[16][16]viz:

The Even-handed and Bar Council (JBC) announces birth opening for application or recommendation, raise the position of CHIEF JUSTICE Gaze at THE SUPREME COURT, which will excellence vacated on17 May 2010upon the departure of the incumbent Chief Justice, HON. REYNATO S. PUNO.

Applications or recommendations cart this position must be submitted throng together later than4 February 2010(Thursday) to dignity JBC Secretariat xxx:

The announcement was publicised on January 20, 2010 in high-mindedness Philippine Daily Inquirer and The Filipino Star.^[17][17]

          Conformably with its existing apply, the JBC “automatically considered” for nobleness position of Chief Justice the cinque most senior of the Associate Justices of the Court, namely: Associate Fairmindedness 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 connect declined their nomination through letters cautious January 18, 2010and January 25, 2010, respectively.^[18][18]

          Others either applied or were nominated. Victor Fernandez, the retired Depute Ombudsman for Luzon, applied, but ulterior formally withdrew his name from thoughtfulness through his letter dated February 8, 2010. Candidates who accepted their nominations without conditions were Associate Justice Renato C. Corona; Associate Justice Teresita Itemize. Leonardo-De Castro; Associate Justice Arturo Series. Brion; and Associate Justice Edilberto Foggy. Sandoval (Sandiganbayan). Candidates who accepted their nominations with conditions were Associate Equitableness Antonio T. Carpio and Associate Injure Conchita Carpio Morales.^[19][19]  Declining their nominations were Atty. Henry Villarica (via conversation with the Executive Officer win 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 breakout consideration former RTC Judge Florentino Floro (for failure to meet the pandect set by the JBC rules); highest Special Prosecutor Dennis Villa-Ignacio of position Office of the Ombudsman (due enrol cases pending in the Office chief the Ombudsman).^[21][21]

          In its meeting deadly February 8, 2010, the JBC firm to proceed to the next onset of announcing the names of say publicly following candidates to invite the the populace to file their sworn complaint, handwritten report, or opposition, if any, fret later than February 22, 2010, thoroughly wit: Associate Justice Carpio, Associate Charitable act Corona, Associate Justice Carpio Morales, Connect Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice Sandoval. The announcement came out in the Philippine Routine Inquirer and The Philippine Star issues of February 13, 2010.^[22][22]

Issues

Although it has already begun the process for rectitude filling of the position of Primary Justice Puno in accordance with cause dejection rules, the JBC is not until now decided on when to submit enrol the President its list of nominees for the position due to rank controversy now before us being as yet unresolved. In the meanwhile, time enquiry marching in quick step towardsMay 17, 2010when the vacancy occurs upon prestige retirement of Chief Justice Puno.

The affairs of the JBC have sparked a-okay vigorous debate not only among acceptable luminaries, but also among non-legal goods, and brought out highly disparate opinions on whether the incumbent President throng together appoint the next Chief Justice fend for not. Petitioner Mendoza notes that jagged Valenzuela, which involved the appointments receive two judges of the Regional Apposite Court, the Court addressed this examination now before us as an supervisory matter “to avoid any possible disputation concerning the matter,” but he opines that the polemics leading to Valenzuela “would be miniscule [sic] compared know the “polemics” that have now erupted in regard to the current controversy,” and that unless “put to straight halt, and this may only befall achieved by a ruling from high-mindedness Court, the integrity of the appearance and the credibility of whoever disintegration appointed to the position of Dominant Justice, may irreparably be impaired.”^[23][23]

          Then, we reframe the issues as submitted by each petitioner in the systematize of the chronological filing of their petitions.

G.R. No. 191002

a.   Does the JBC have the power and authority not far from resolve the constitutional question of bon gr the incumbent President can appoint spruce Chief Justice during the election restrict period?

b.   Does the incumbent President scheme the power and authority to cheap and nasty during the election ban the inheritor of Chief Justice Puno when do something vacates the position of Chief High-mindedness on his retirement onMay 17, 2010?

G.R. No. 191032

a.  Is the power tell off appoint the Chief Justice vested knock over the Supreme Court en banc?

G.R. Clumsy. 191057

a.   Is the constitutional prohibition dispute appointment under Section 15, Article Heptad of the Constitution applicable only keep positions in the Executive Department?

b.  Deducing that the prohibition under Section 15, Article VII of the Constitution further applies to members of the Diet, may such appointments be excepted on account of they are impressed with public put under or are demanded by the fundamentals of public service, thereby justifying these appointments during the period of prohibition?

c. Does the JBC have the right to decide whether or not space include and submit the names characteristic nominees who manifested interest to carbon copy nominated for the position of Noteworthy Justice on the understanding that his/her nomination will be submitted to ethics next President in view of leadership prohibition against presidential appointments from Pace 11, 2010 until June 30, 2010?

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

a.  Does Section 15, Article VII of the Constitution fix to appointments to positions in loftiness Judiciary under Section 9, Article Cardinal of the Constitution?

b. May President Gloria Macapagal-Arroyo make appointments to the Organisation after March 10, 2010, including turn for the position of Chief Objectivity after Chief Justice Puno retires come May 17, 2010?

G.R. No. 191149

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

G.R. Rebuff. 191342

a.     Does the JBC have class authority to submit the list have a high opinion of nominees to the incumbent President after committing a grave violation of significance Constitution and jurisprudence prohibiting the minister President from makingmidnightappointments two months straightaway preceding the next presidential elections undetermined the end of her term?

b.     Commission any act performed by the JBC, including the vetting of the lea for the position of Chief Rectitude, constitutionally invalid in view of class JBC’s illegal composition allowing each affiliate from the Senate and the Villa of Representatives to have one ticket each?

OnFebruary 16, 2010, the Court compelled the JBC and the Office depict the Solicitor General (OSG) to notice on the consolidated petitions, except ditch filed in G.R. No. 191342.

On Feb 26, 2010, the JBC submitted dismay comment, reporting therein that the early payment stage of the process for nobility selection of the nominees for class position of Chief Justice would suitably the public interview of the grassland and the preparation of the subsequently list of candidates, “including the meeting of the constitutional experts, as could be needed.”^[24][24] It stated:^[25][25]

Likewise, the JBC has yet to take a proffer on when to submit the shortlist to the proper appointing authority, barge in light of Section 4 (1), Lie VIII of the Constitution, which provides that vacancy in the Supreme Press one`s suit with shall be filled within ninety (90) days from the occurrence thereof, Civic 15, Article VII of the Formation concerning the ban on Presidential equipment “two (2) months immediately before say publicly next presidential elections and up endorse the end of his term” have a word with Section 261 (g), Article XXII reveal the Omnibus Election Code of nobleness Philippines.

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

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

The OSG insists that: (a) a writ of prohibition cannot to be won or lost to prevent the JBC from playing its principal function under the Style to recommend appointees in the Judiciary; (b) the JBC’s function to enjoin is a “continuing process,” which does not begin with each vacancy leader end with each nomination, because say publicly goal is “to submit the transfer of nominees to Malacañang on excellence very day the vacancy arises”;^[26][26] probity JBC was thus acting within professor jurisdiction when it commenced and outset in motion the process of settling on the nominees to be submitted commemorative inscription the President for the position elaborate Chief Justice to be vacated dampen Chief Justice Puno;^[27][27] (c) petitioner Soriano’s theory that it is the Unequalled Court, not the President, who has the power to appoint the Principal Justice, is incorrect, and proceeds bring forth his misinterpretation of the phrase “members of the Supreme Court” found lineage Section 9, Article VIII of probity Constitution as referring only to integrity Associate Justices, to the exclusion sun-up the Chief Justice;^[28][28] (d) a order of mandamus can issue to vigour the JBC to submit the listings of nominees to the President, in view of that its duty to prepare excellence list of at least three nominees is unqualified, and the submission sketch out the list is a ministerial true-life that the JBC is mandated come close to perform under the Constitution; as much, the JBC, the nature of whose principal function is executive, is mass vested with the power to accomplish who has the authority to erior the next Chief Justice and, then, has no discretion to withhold high-mindedness list from the President;^[29][29] and (e) a writ of mandamus cannot canal to compel the JBC to insert or exclude particular candidates as nominees, considering that there is no necessary duty on its part to encompass in or exclude from the lean particular individuals, but, on the contradictory, the JBC’s determination of who position nominates to the President is air exercise of a discretionary duty.^[30][30]

The OSG contends that the incumbent President haw appoint the next Chief Justice, in that the prohibition under Section 15, Untruth VII of the Constitution does whoop apply to appointments in the Principal Court. It argues that any job in the Supreme Court must breed filled within 90 days from neat occurrence, pursuant to Section 4(1), Morsel VIII of the Constitution;^[31][31] that be grateful for their deliberations on the mandatory time for the appointment of Supreme Pursue Justices, the framers neither mentioned blurry referred to the ban against dead of night appointments, or its effects on specified period, or vice versa;^[32][32] that difficult to understand the framers intended the prohibition don apply to Supreme Court appointments, they could have easily expressly stated in this fashion in the Constitution, which explains reason the prohibition found in Article Sevener (Executive Department) was not written middle Article VIII (Judicial Department); and meander the framers also incorporated in Crumb VIII ample restrictions or limitations garbage the President’s power to appoint workers of the Supreme Court to guarantee its independence from “political vicissitudes” gleam its “insulation from political pressures,”^[33][33] specified as stringent qualifications for the positions, the establishment of the JBC, integrity specified period within which the Foreman shall appoint a Supreme Court Justice.

The OSG posits that although Valenzuela affected the appointment of RTC Judges, high-mindedness situation now refers to the billet of the next Chief Justice be introduced to which the prohibition does not apply; that, at any rate, Valenzuela evenrecognized that there might be “the expertise need for an appointment during greatness period of the ban,” like as the membership of the Supreme Eyeball should be “so reduced that defeat will have no quorum, or have to the voting on a particular main question requiring expeditious resolution be divided”;^[34][34] and that Valenzuela also recognized guarantee the filling of vacancies in honourableness Judiciary is undoubtedly in the let slip interest, most especially if there deference any compelling reason to justify leadership making of the appointments during say publicly period of the prohibition.^[35][35]

Lastly, the OSG urges that there are now of course compelling reasons for the incumbent Number one to appoint the next Chief Helping hand, to wit: (a) a deluge treat cases involving sensitive political issues high opinion “quite expected”;^[36][36] (b) the Court book as the Presidential Electoral Tribunal (PET), which, sitting en banc, is high-mindedness sole judge of all contests recital to the election, returns, and illequipped of the President and Vice Superintendent and, as such, has “the indicate to correct manifest errors on authority 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 once upon the occurrence of the opportunity, from the time of the power of the Constitution, there is these days even more reason to appoint honesty next Chief Justice immediately upon grandeur retirement of Chief Justice Puno;^[38][38] captivated (d) should the next Chief Disgraceful come from among the incumbent Hit it off Justices of the Supreme Court, thereby causing a vacancy, it also becomes incumbent upon the JBC to slope the selection process for the stuffing up of the vacancy in conformity 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 stop Atty. Christian Robert S. Lim (Lim);

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

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

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

(f) Magnanimity opposition-in-intervention datedFebruary 25, 2010 of Unsegregated Bar of the Philippines-Davao del Tyre Chapter and its Immediate Past Chair, Atty. Israelito P. Torreon (IBP- Davao del Sur);

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

(h)The consolidated comment/opposition-in-intervention dated Feb 26, 2010 of BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary Public Renato M. Reyes, Jr.; Confederation diplomat Unity, Recognition and Advancement of Polity Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY) Secretary Common Gloria Arellano; Alyansa ng Nagkakaisang Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo backpack Pag-asa Convenor Alvin Peters; League be keen on Filipino Students (LFS) Chairman James Dent Terry Lacuanan Ridon; National Union noise Students of the Philippines (NUSP) Chairperson Einstein Recedes, College Editors Guild lift the Philippines (CEGP) Chairman Vijae Alquisola; and Student Christian Movement of loftiness Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et al.);

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

(j) The amalgamate comment/opposition-in-intervention dated March 4, 2010 carryon the Women Trial Lawyers Organization oppress 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. Character de Leon (WTLOP).

Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao delSur, and NUPL take the position turn this way De Castro’s petition was bereft funding any basis, because under Section 15, Article VII, the outgoing President psychoanalysis constitutionally banned from making any furniture from March 10, 2010 until June 30, 2010, including the appointment lay out the successor of Chief Justice Puno. Hence, mandamus does not lie kindhearted compel the JBC to submit depiction list of nominees to the departing President if the constitutional prohibition not bad already in effect. Tan adds dump the prohibition against midnight appointments was applied by the Court to say publicly appointments to the Judiciary made harsh then President Ramos, with the Respect holding that the duty of integrity President to fill the vacancies also gaol 90 days from occurrence of excellence vacancies (for the Supreme Court) constitute from the submission of the evidence (for all other courts) was howl an excuse to violate the constitutive prohibition.

Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose the insistence that Valenzuela recognizes the possibility that the The man may appoint the next Chief Sin against if exigent circumstances warrant the employment, because that recognition is obiter dictum;and aver that the absence of uncluttered Chief Justice or even an Ally Justice does not cause epic quicken or absolute disruption or paralysis rework the operations of the Judiciary. They insist that even without the peer of Chief Justice Puno being ordained by the incumbent President, the Courtyard is allowed to sit and ruling en banc or in divisions on the way out three, five or seven members on tap its discretion; that a full body of the Court is not necessary; that petitioner De Castro’s fears put in order unfounded and baseless, being based continual a mere possibility, the occurrence personal which is entirely unsure; that loaded is not in the national implication to have a Chief Justice whose appointment is unconstitutional and, therefore, void; and that such a situation liking create a crisis in the impartial system and will worsen an even now vulnerable political situation.

ice is imperative concerning the stability of the judicial silhouette and the political situation in decency country when the election-related questions girth the Court as false, because more is an existing law on contents the void brought about by shipshape and bristol fashion vacancy in the office of Decisive Justice; that the law is Fall to pieces 12 of the Judiciary Act raise 1948, which has not been repealed by Batas PambansaBlg. 129 or teeming other law; that a temporary virtuous an acting Chief Justice is weep anathema to judicial independence; that loftiness designation of an actingChief Justice psychotherapy not only provided for by lapse, but is also dictated by dexterous necessity; that the practice was deliberate to be enshrined in the 1987 Constitution, but the Commissioners decided call to write it in the Essay on account of the settled practice; that the practice was followed slipup the 1987 Constitution, when, in 1992, at the end of the name of Chief Justice Marcelo B. Fernan, Associate Justice Andres Narvasa assumed depiction position as Acting Chief Justice erstwhile to his official appointment as Leading Justice; that said filling up admit a vacancy in the office in this area the Chief Justice was acknowledged arena even used by analogy in depiction case of the vacancy of description Chairman of the Commission on Elections, per Brillantes v. Yorac, 192 SCRA 358; and that the history make public the Supreme Court has shown go off this rule of succession has antiquated repeatedly observed and has become elegant part of its tradition.

Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain range the Omnibus Election Code penalizes whilst an election offense the act classic any government official who appoints, promotes, or gives any increase in eager or remuneration or privilege to ignoble government official or employee during goodness period of 45 days before a-ok regular election; that the provision coverlets all appointing heads, officials, and personnel of a government office, agency instance instrumentality, including the President; that pick the incumbent President to appoint description next Chief Justice upon the isolation of Chief Justice Puno, or mid the period of the ban be submerged the Omnibus Election Code, constitutes cosmic election offense; that even an tempo of the next Chief Justice earlier to the election ban is chiefly invalid and without effect because at hand can be no appointment until uncomplicated vacancy occurs; and that the hiatus for the position can occur by May 17, 2010.         

Intervenor Boiseradds think it over De Castro’s prayer to compel decency submission of nominees by the JBC to the incumbent President is off-tangent because the position of Chief Virtue is still not vacant; that show accidentally speak of a list, much make more complicated a submission of such list, a while ago a vacancy occurs is glaringly premature; that the proposed advance appointment overstep the incumbent President of the loan Chief Justice will be unconstitutional; celebrated that no list of nominees glance at be submitted by the JBC in case there is no vacancy.

All the intervenors-oppositorssubmit that Section 15, Article VII accomplishs no distinction between the kinds rivalry appointments made by the President; enthralled that the Court, in Valenzuela, ruled that the appointments by the Maestro of the two judges during authority prohibition period were void.

Intervenor WTLOP posits that Section 15, Article VII remind you of the 1987 Constitution does not fasten only to the appointments in rank Executive Department, but also to even-handed appointments, contrary to the submission keep in good condition PHILCONSA; that Section 15 does sob distinguish; and that Valenzuela already understood the prohibition as applicable to objective appointments.

Intervenor WTLOP further posits that suppliant Soriano’s contention that the power regard appoint the Chief Justice is statutory, not in the President, but alter the Supreme Court, is utterly trumped up, because the Chief Justice is further a Member of the Supreme Scan as contemplated under Section 9, Cancel VIII; and that, at any renew, the term “members” was interpreted lineage Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer assail the Chief Justice and the Affiliate Justices of the Supreme Court; turn this way PHILCONSA’s prayer that the Court involve a resolution declaring that persons who manifest their interest as nominees, on the contrary with conditions, shall not be ostensible nominees by the JBC is antipodal opposed to the arguments in justness body of its petition; that specified glaring inconsistency between the allegations boardwalk the body and the relief prayed for highlights the lack of gain of PHILCONSA’s petition; that the separate of the JBC cannot be distributed from the constitutional prohibition on rectitude President; and that the Court mildew direct the JBC to follow position rule of law, that is, check in submit the list of nominees one and only to the next duly elected Head after the period of the natural ban against midnight appointments has expired.

Oppositor IBP Davao del Sur opines delay the JBC – because it disintegration neither a judicial nor a quasi-judicial body – has no duty foul up the Constitution to resolve the inquiry of whether the incumbent President pot appoint a Chief Justice during magnanimity period of prohibition; that even on condition that the JBC has already come system failure with a short list, it termination has to bow to the constricting limitations under Section 15, Article VII; that should the JBC defer concession of the list, it is remote arrogating unto itself a judicial be in, but simply respecting the clear territory of the Constitution; and that description application of the general rule deliver Section 15, Article VII to description Judiciary does not violate the enactment of separation of powers, because articulated 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 denunciation purely ministerial and does not squalid the exercise of judgment; that here can be no default on class part of the JBC in submitting the list of nominees to justness President, considering that the call choose applications only begins from the affair of the vacancy in the Matchless Court; and that the commencement match the process of screening of green to fill the vacancy in rank office of the Chief Justice lone begins from the retirement on Can 17, 2010, for, prior to that date, there is no definite licit basis for any party to requisition that the submission or non-submission cataclysm the list of nominees to authority President by the JBC is great matter of right under law.

The vital question presented in all the filings herein – because it involves brace seemingly conflicting provisions of the Edifice – imperatively demands the attention esoteric resolution of this Court, the one and only authority that can resolve the difficulty definitively and finally. The imperative lead to rests on the ever-present need, first, to safeguard the independence, reputation, bracket integrity of the entire Judiciary, mainly this Court, an institution that has been unnecessarily dragged into the hot-headed polemics brought on by the controversy; second, to settle once and put under somebody's nose all the doubt about an past President’s power to appoint to grandeur Judiciary within the long period unprecedented two months before the presidential elections until the end of the statesmanly term; and third, to set a-okay definite guideline for the JBC assume follow in the discharge of betrayal primary office of screening and nominating qualified persons for appointment to say publicly Judiciary.

Thus, we resolve.

Ruling of the Court

Locus Standi of Petitioners

The preliminary issue private house be settled is whether or crowd the petitioners have locus standi.

Black defines locus standi as “a right give evidence appearance in a court of fairmindedness on a given question.”^[41][41] In market or constitutional litigations, the Court evolution often burdened with the determination in this area the locus standi of the petitioners due to the ever-present need hold forth regulate the invocation of the interference of the Court to correct working-class official action or policy in disquiet to avoid obstructing the efficient process of public officials and offices complicated in public service. It is needful, therefore, that the petitioner must maintain a personal stake in the aftereffect of the controversy, for, as personal to in Agan, Jr. v. Philippine Universal Air Terminals Co., Inc.:^[42][42]

The question broadcast legal standing is whether such parties have “alleged such a personal pale in the outcome of the argument as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so principally depends for illumination of difficult essential questions.”^[43][43]Accordingly, it has been held ditch the interest of a person assailing the constitutionality of a statute forced to be direct and personal. He corrosion be able to show, not that the law or any control act is invalid, but also cruise he sustained or is in nigh danger of sustaining some direct impairment as a result of its execution, and not merely that he suffers thereby in some indefinite way. Passion must appear that the person captious has been or is about more be denied some right or freedom to which he is lawfully ruling or that he is about take a trip be subjected to some burdens be unhappy penalties by reason of the written or act complained of.^[44][44]

It is genuine that as early as in 1937, in People v. Vera,^[45][45] the Pay suit to adopted the direct injury test care determining whether a petitioner in graceful public action had locus standi. There, the Court held that the individually who would assail the validity dying a statute must have “a physical and substantial interest in the attachй case such that he has sustained, be responsible for will sustain direct injury as a-one result.” Vera was followed in Custodio v. President of the Senate,^[46][46]Manila Exercise Horse Trainers’ Association v. De icy Fuente,^[47][47]Anti-Chinese League of the Philippines altogether. Felix,^[48][48]and Pascual v. Secretary of Key Works.^[49][49]

Yet, the Court has also booked that the requirement of locus standi, being a mere procedural technicality, gawk at be waived by the Court acquit yourself the exercise of its discretion. Funds instance, in 1949, in Araneta completely. Dinglasan,^[50][50] the Court liberalized the close when the cases had “transcendental importance.” Some notable controversies whose petitioners frank not pass the direct injury test were allowed to be treated look the same way as in Araneta v. Dinglasan.^[51][51]

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

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

However, the assertion of shipshape and bristol fashion public right as a predicate sponsor challenging a supposedly illegal or improper executive or legislative action rests homily the theory that the petitioner represents the public in general. Although specified petitioner may not be as unfortunately affected by the action complained combat as are others, it is sufficiency that he sufficiently demonstrates in authority petition that he is entitled bright protection or relief from the Tedious in the vindication of a communal right.

Quite often, as here, the applier in a public action sues reorganization a citizen or taxpayer to unaffected locus standi. That is not out of the blue, for even if the issue might appear to concern only the universal in general, such capacities nonetheless outfit the petitioner with adequate interest helter-skelter sue. In David v. Macapagal-Arroyo,^[54][54] blue blood the gentry Court aptly explains why:     

Case law integrate most jurisdictions now allows both “citizen” and “taxpayer” standing in public alertnesses. The distinction was first laid gall in Beauchamp v. Silk,^[55][55] where outlet was held that the plaintiff creepycrawly a taxpayer’s suit is in organized different category from the plaintiff ton a citizen’s suit. In the find, the plaintiff is affected by righteousness expenditure of public funds, while connect the latter, he is but class mere instrument of the public concern. As held by the New Dynasty Supreme Court in People ex squabble Case v. Collins:^[56][56] “In matter do in advance mere public right, however…the people trade the real parties…It is at nadir the right, if not the labored, of every citizen to interfere unthinkable see that a public offence endure properly pursued and punished, and roam a public grievance be remedied.” Recognize respect to taxpayer’s suits, Terr categorically. Jordan^[57][57]held that “the right of unadulterated citizen and a taxpayer to pardon an action in courts to attribute the unlawful use of public way 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 simple as citizens filing their petitions take care behalf of the public who sense directly affected by the issue light the appointment of the next Superior Justice. De Castro and Soriano besides claim standing as taxpayers, with Soriano averring that he is affected vulgar the continuing proceedings in the JBC, which involve “unnecessary, if not, dishonourable disbursement of public funds.”^[59][59]

PHILCONSA alleges strike to be a non-stock, non-profit accommodate existing under the law for honourableness purpose of defending, protecting, and defend the Constitution and promoting its emotion and flowering. It also alleges ditch the Court has recognized its authorized standing to file cases on constitutive issues in several cases.^[60][60]

In A.M. Ham-fisted. 10-2-5-SC, Mendoza states that he admiration a citizen of the Philippines, wonderful member of the Philippine Bar busy in the active practice of handle roughly, and a former Solicitor General, one-time Minister of Justice, former Member unsaved the Interim Batasang Pambansa and nobleness Regular Batasang Pambansa, and former affiliate of the Faculty of the Faculty of Law of the University look up to the Philippines.

The petitioners in G.R. Negation. 191342 are the Governors of excellence Integrated Bar of the Philippines (IBP) for Southern Luzon and Eastern Visayas. They allege that they have significance legal standing to enjoin the servitude of the list of nominees moisten the JBC to the President, use “[a]n adjudication of the proper decipherment and application of the constitutional cease on midnight appointments with regard get through to respondent JBC’s function in submitting illustriousness list of nominees is well internal the concern of petitioners, who unwanted items duty bound to ensure that observance and respect for the Constitution go over upheld, most especially by government shtick indulgence, such as respondent JBC, who desire specifically tasked to perform crucial functions in the whole scheme of tart democratic institution.” They further allege digress, reposed in them as members find time for the Bar, is a clear lawful interest in the process of picking the members of the Supreme Mindnumbing, and in the selection of glory Chief Justice, considering that the informer appointed becomes a member of excellence body that has constitutional supervision viewpoint authority over them and other components of the legal profession.^[61][61]

The Court lyrics that the petitioners have each demonstrated adequate interest in the outcome tinge the controversy as to vest them with the requisite locus standi. Primacy issues before us are of baffling importance to the people as unadulterated whole, and to the petitioners incline particular. Indeed, the issues affect humankind (including the petitioners), regardless of one’s personal interest in life, because they concern that great doubt about authority authority of the incumbent President proffer appoint not only the successor epitome the retiring incumbent Chief Justice, however also others who may serve overfull the Judiciary, which already suffers evade a far too great number addendum vacancies in the ranks of test judges throughout the country.

In any serve, the Court retains the broad circumspection to waive the requirement of canonical standing in favor of any entreating when the matter involved has recondite importance, or otherwise requires a relief of the requirement.^[62][62]

Yet, if any question still lingers about the locus standi of any petitioner, we dispel rendering doubt now in order to take away any obstacle or obstruction to righteousness resolution of the essential issue overflow presented herein. We are not be in breach of shirk from discharging our solemn job 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 deep-seated law because in some cases, suits are not brought by parties who have been personally injured by loftiness operation of a law or friendship other government act but by unfortunate citizens, taxpayers or voters who really sue in the public interest.” Nevertheless even if, strictly speaking, the petitioners “are not covered by the delineation, it is still within the staterun discretion of the Court to cede the requirement and so remove loftiness impediment to its addressing and breakdown the serious constitutional questions raised.”^[64][64]

Justiciability

Intervenor NUPL maintains that there is no decent case or controversy that is fitting or ripe for adjudication, considering walk although the selection process commenced manage without the JBC is going on, all over is yet no final list past it nominees; hence, there is no in the balance controversy as to whether such inventory must be submitted to the necessary President, or reserved for submission problem the incoming President.

Intervenor Tan raises character lack of any actual justiciable argumentation that is ripe for judicial resolution, pointing out that petitioner De Socialist has not even shown that significance JBC has already completed its strain process and is now ready convey submit the list to the necessary President; and that petitioner De Socialist is merely presenting a hypothetical outline that is clearly not sufficient championing the Court to exercise its nationstate of judicial review.

Intervenors Corvera and Sleek separately opine that De Castro’s inquire rests on an overbroad and indistinct allegation of political tension, which high opinion insufficient basis for the Court get stuck exercise its power of judicial review.

Intervenor BAYAN et al. contend that birth petitioners are seeking a mere par‘netical opinion on what the JBC swallow the President should do, and complete not invoking any issues that go up in price justiciable in nature.

Intervenors Bello et al.

We hold that the petitions head forth an actual case or dispute that is ripe for judicial tenacity. The reality is that the JBC already commenced the proceedings for blue blood the gentry selection of the nominees to put right included in a short list come to get be submitted to the President tend consideration of which of them discretion succeed Chief Justice Puno as blue blood the gentry next Chief Justice. Although the shuffle is not yet vacant, the certainty that the JBC began the action of nomination pursuant to its soft-cover and practices, although it has even to decide whether to submit excellence list of nominees to the parson outgoing President or to the trice President, makes the situation ripe apply for judicial determination, because the next pecking order are the public interview of high-mindedness candidates, the preparation of the little list of candidates, and the “interview of constitutional experts, as may produce needed.”

A part of the question necessitate be reviewed by the Court progression whether the JBC properly initiated dignity process, there being an insistence spread some of the oppositors-intervenors that justness JBC could only do so promptly the vacancy has occurred (that is, after May 17, 2010). Another substance is, of course, whether the JBC may resume its process until excellence short list is prepared, in viewpoint of the provision of Section 4(1), Article VIII, which unqualifiedly requires honesty President to appoint one from justness short list to fill the hiatus in the Supreme Court (be situation the Chief Justice or an Comrade Justice) within 90 days from goodness occurrence of the vacancy.

The ripeness cue the controversy for judicial determination could not be doubted. The challenges fight back the authority of the JBC find time for open the process of nomination swallow to continue the process until probity submission of the list of nominees; the insistence of some of high-mindedness petitioners to compel the JBC turn upside down mandamus to submit the short give out to the incumbent President; the counter-insistence of the intervenors to prohibit glory JBC from submitting the short enter to the incumbent President on probity ground that said list should get into submitted instead to the next President; the strong position that the clergyman President is already prohibited under Part 15, Article VII from making unrefined appointments, including those to the Reception room, starting on May 10, 2010 till such time as June 30, 2010; and the contumacious position that the incumbent President equitable not so prohibited are only harsh of the real issues for independent lifestyle. All such issues establish the maturity of the controversy, considering that pine some the short list must remedy submitted before the vacancy actually occurs byMay 17, 2010. The outcome option not be an abstraction, or precise merely hypothetical exercise. The resolution devotee the controversy will surely settle – with finality – the nagging questions that are preventing the JBC raid moving on with the process prowl it already began, or that hook reasons persuading the JBC to give over from the rest of the process.

We need not await the occurrence bring into the light the vacancy by May 17, 2010in order for the principal issue stick to ripe for judicial determination by nobility Court. It is enough that give someone a ring alleges conduct arguably affected with straight constitutional interest, but seemingly proscribed wedge the Constitution. A reasonable certainty understanding the occurrence of the perceived peril to a constitutional interest is competent to afford a basis for transportation a challenge, provided the Court has sufficient facts before it to empower it to intelligently adjudicate the issues.^[65][65] Herein, the facts are not slender doubt, for only legal issues remain.

Substantive Merits

I

Prohibition under Section 15, Article Cardinal does not apply

to appointments do as you are told fill a vacancy in the Foremost Court

or to other appointments to birth Judiciary

Two constitutional provisions are seemingly minute conflict.

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

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

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

Section 4. (1). The First Court shall be composed of wonderful Chief Justice and fourteen Associate Justices. It may sit en banc outer shell in its discretion, in division bazaar three, five, or seven Members. Dick vacancy shall be filled within xc days from the occurrence thereof.

In blue blood the gentry consolidated petitions, the petitioners, with honourableness exception of Soriano, Tolentino and Censorious, submit that the incumbent President throne appoint the successor of Chief Service Puno upon his retirement onMay 17, 2010, on the ground that high-mindedness prohibition against presidential appointments under Part 15, Article VII does not stretch to appointments in the Judiciary.

The Boring agrees with the submission.

First. The annals of the deliberations of the Inherent Commission reveal that the framers devout time to meticulously drafting, styling, unacceptable arranging the Constitution. Such meticulousness indicates that the organization and arrangement tip off the provisions of the Constitution were not arbitrarily or whimsically done do without the framers, but purposely made simulate reflect their intention and manifest their vision of what the Constitution obligated to contain.

The Constitution consists of 18 In the matter of a payment, three of which embody the pay of the awesome powers of direction among the three great departments, influence Legislative (Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a gauge recognition of the principle of break-up of powers that underlies the national structure, as Constitutional Commissioner Adolfo Fierce. Azcuna (later a worthy member get a hold the Court) explained in his protection speech:

We have in the political factor of this Constitution opted for excellence separation of powers in government on account of we believe that the only disturb to protect freedom and liberty review to separate and divide the breathtaking powers of government. Hence, we come back to the separation of powers concept and the legislative, executive and official departments.^[66][66]

As can be seen, Article Digit is devoted to the Executive Bureau, and, among others, it lists representation powers vested by the Constitution dependably the President. The presidential power endorse appointment is dealt with in Sections 14, 15 and 16 of say publicly Article.

Article VIII is dedicated to illustriousness Judicial Department and defines the duties and qualifications of Members of representation Supreme Court, among others. Section 4(1) and Section 9 of this Concept are the provisions specifically providing misunderstand the appointment of Supreme Court Justices. In particular, Section 9 states think it over the appointment of Supreme Court Justices can only be made by justness President upon the submission of unembellished list of at least three nominees by the JBC; Section 4(1) own up the Article mandates the President form fill the vacancy within 90 period from the occurrence of the vacancy.

Had the framers intended to extend character prohibition contained in Section 15, Firstly VII to the appointment of Branchs of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous organisation of the provisions. They would hold easily and surely written the crushing made explicit in Section 15, Scoop VII as being equally applicable humble the appointment of Members of interpretation Supreme Court in Article VIII upturn, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that interpretation prohibition against the President or Picky President making appointments within two months before the next presidential elections plus up to the end of representation President’s or Acting President’s term does not refer to the Members reminisce the Supreme Court.

Although Valenzuela^[67][67] came grant hold that the prohibition covered unexcitable judicial appointments, it cannot be unnoticed that the Valenzuela dictum did clump firmly rest on the deliberations be a witness the Constitutional Commission. Thereby, the proof made to the JBC by for that reason Senior Associate Justice Florenz D. Regalado of this Court, a former party of the Constitutional Commission, about decency prohibition not being intended to learn to the appointments to the Judicature, which confirmation Valenzuela even expressly consider, should prevail.

          Relevantly, Valenzuela adverted follow the intent of the framers put it to somebody the genesis of Section 4 (1), Article VIII, viz:

V            . Intent break into the Constitutional Commission

The journal of glory Commission which drew up the current Constitution discloses that the original proposition was to have an eleven-member Beyond compare Court. Commissioner Eulogio Lerum wanted defile increase the number of Justices show to advantage fifteen. He also wished to insure that that number would not emerging reduced for any appreciable length lift time (even only temporarily), and on every side this end proposed that any abstraction “must be filled within two months from the date that the lacuna occurs.”  His proposal to have a- 15-member Court was not initially adopted.  Persisting however in his desire show make certain that the size  make out the Court would not be lessened for any substantial period as skilful result of vacancies, Lerum proposed magnanimity insertion in the provision (anent decency Court’s membership) of the same authorization that “IN CASE OF ANY Abstraction, THE SAME SHALL BE FILLED Interior TWO MONTHS FROM OCCURRENCE THEREOF.”  Flair later agreed to suggestions to stamp the period three, instead of bend in half, months.  As thus amended, the suggestion was approved. As it turned reduce, however, the Commission ultimately agreed honorable mention a fifteen-member Court. Thus it was that the section fixing the combination of the Supreme Court came competent include a command to fill deprive any vacancy therein within 90 epoch from its occurrence.

In this connection, tingle may be pointed out that turn instruction that any “vacancy shall be filled within ninety days” (in greatness last sentence of Section 4 (1) of Article VIII) contrasts with say publicly prohibition in Section 15, Article Figure, which is couched in stronger give the thumbs down to language – that “a President invasion Acting President shall not make appointments…”

The commission later approved a proposal depose Commissioner Hilario G. Davide, Jr. (now a Member of this Court) holiday add to what is now Civic 9 of Article VIII, the consequent paragraph: “WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE Panic WITHIN NINETY DAYS FROM THE Servitude OF THE LIST” (of nominees tough the Judicial and Bar Council check in the President). Davide stated that crown purpose was to provide a “uniform rule” for lower courts.  According take advantage of him, the 90-day period should give somebody the job of counted from submission of the assign of nominees to the President shut in view of the possibility that greatness President might reject the list submitted to him and the JBC so need more time to submit dinky new one.

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

          However, blue blood the gentry reference to the records of character Constitutional Commission did not advance ingress support the result in Valenzuela. Godforsaken to the contrary, the records illegal the express intent of the framers to enshrine in the Constitution, gaze at the initiative of Commissioner Eulogio Lerum, “a command [to the President] put your name down fill up any vacancy therein advantageous 90 days from its occurrence,” which even Valenzuela conceded.^[69][69] The exchanges around deliberations of the Constitutional Commission make October 8, 1986 further show range the filling of a vacancy difficulty the Supreme Court within the 90-day period was a truemandate for description President, viz:

MR. DE CASTRO. I grasp that our justices now in high-mindedness Supreme Court, together with the Sizeable Justice, are only 11.

MR. CONCEPCION. Yes.

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

MR. CONCEPCION. That is right.

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

MR. CONCEPCION. That is right. That is borne tear down of the fact that in nobleness past 30 years, seldom has justness Court had a complete complement.^[70][70]

Moreover, primacy usage in Section 4(1), Article Cardinal of the word shall – drawing imperative, operating to impose a fire that may be enforced^[71][71] – requirement not be disregarded. Thereby, Sections 4(1) imposes on the President the imperativeduty to make an appointment of out Member of the Supreme Court in 90 days from the occurrence hold sway over the vacancy. The failure by prestige President to do so will mistrust a clear disobedience to the Constitution.

The 90-day limitation fixed in Section 4(1), Article VIII for the President turn into fill the vacancy in the Loftiest Court was undoubtedly a special sustenance to establish a definite mandate liberation the President as the appointing strategy, and cannot be defeated by bare judicial interpretation in Valenzuela to decency effect that Section 15, Article Septet prevailed because it was “couched unswervingly stronger negative language.” Such interpretation regular turned out to be conjectural, cage up light of the records of grandeur Constitutional Commission’s deliberations on Section 4 (1), Article VIII.

How Valenzuela justified loom over pronouncement and result is hardly meet. According to an authority on lawful construction:^[72][72]

xxx the court should seek uphold avoid any conflict in the refreshment of the statute by endeavoring distribute harmonize and reconcile every part like so that each shall be effective. Posse is not easy to draft adroit statute, or any other writing expose that matter, which may not hold some manner contain conflicting provisions. On the contrary what appears to the reader repeat be a conflict may not conspiracy seemed so to the drafter. Certainly, each provision was inserted for grand definite reason. Often by considering high-mindedness enactment in its entirety, what appears to be on its face straighten up conflict may be cleared up wallet the provisions reconciled.

Consequently, that construction which will leave every word operative desire be favored over one which leaves some word or provision meaningless now of inconsistency. But a word obligation not be given effect, if close to do so gives the statute a- meaning contrary to the intent weekend away the legislature. On the other facilitate, if full effect cannot be stated to the words of a act, they must be made effective tempt far as possible. Nor should dignity provisions of a statute which sense inconsistent be harmonized at a surrender of the legislative intention. It may well be that two provisions are irreconcilable; if so, the one which expresses the intent of the law-makers requirement control. And the arbitrary rule has been frequently announced that where less is an irreconcilable conflict between greatness different provisions of a statute, picture provision last in order of rearrange will prevail, since it is class latest expression of the legislative testament choice. Obviously, the rule is subject handle deserved criticism. It is seldom efficient, and probably then only where tone down irreconcilable conflict exists between different sections of the same act, and afterwards all other means of ascertaining leadership meaning of the legislature have archaic exhausted. Where the conflict is amidst two statutes, more may be uttered in favor of the rule’s pitch, largely because of the principle catch implied repeal.

In this connection, PHILCONSA’s encouragement of a revisit and a regard of Valenzuela is timely and capture. Valenzuela arbitrarily ignored the express purpose of the Constitutional Commission to keep Section 4 (1), Article VIII support independently of any other provision, minimum of all one found in Morsel VII. It further ignored that decency two provisions had no irreconcilable difference, regardless of Section 15, Article Sevener being couched in the negative. Primate judges, we are not to immoderately interpret, and should not accept potent interpretation that defeats the intent show signs of the framers.^[73][73]

          Consequently, prohibiting the necessary President from appointing a Chief Disgraceful on the premise that Section 15, Article VII extends to appointments uphold the Judiciary cannot be sustained. Straighten up misinterpretation like Valenzuela should not excellence allowedto last after its false provisions have been exposed.^[74][74]It will not prang to merely distinguish Valenzuela from these cases, for the result to wool reached herein is entirely incompatible restore what  Valenzuela decreed.Consequently, Valenzuela nowdeserves give somebody no option but to be quickly sent to the wastebin of the unworthy and forgettable.

We transpose Valenzuela.

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

There assessment no question that one of integrity reasons underlying the adoption of Splinter 15 as part of Article Digit was to eliminate midnightappointments from heart made by an outgoing Chief Given that in the mold of the appliances dealt with in the leading change somebody's mind of Aytona v. Castillo.^[75][75] In accomplishment, in Valenzuela, the Court so pragmatic, stating that:

xxx it appears that Spell 15, Article VII is directed be realistic two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. Illustriousness first refers to those appointments finished within the two months preceding put in order Presidential election and are similar pause those which are declared election offenses in the Omnibus Election Code, viz.:

xxx

The second type of appointments prohibited fail to see Section 15, Article VII consists oppress the so-called “midnight” appointments. In Aytona v. Castillo, it was held wander after the proclamation of Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated renovate his bid for reelection, became negation more than a “caretaker” administrator whose duty was to “prepare for position orderly transfer of authority to excellence incoming President.”  Said the Court:

“The load up of vacancies in  important positions, if few, and so spaced whilst to afford some assurance of longwinded action and careful consideration of leadership need for the appointment and appointee’s qualifications may undoubtedly be permitted.  On the contrary the issuance of 350 appointments story one night and the planned baptism of almost all of them wellheeled a few hours before the commencement of the new President may, siphon off some reason, be regarded by leadership latter as an abuse of Statesmanlike prerogatives, the steps taken being seemingly a mere partisan effort to bring to fruition all vacant positions irrespective of profit and other conditions, and thereby have knowledge of deprive the new administration of involve opportunity to make the corresponding appointments.”

As indicated, the Court recognized that almost may well be appointments to cap positions which have to be compelled even after the proclamation of description new President.  Such appointments, so unconventional as they are “few and as follows spaced as to afford some warranty of deliberate action and careful attentiveness of the need for the tryst and the appointee’s qualifications,”can be imposture by the outgoing President.  Accordingly, assorted appointments made by President Garcia, which were shown to have been petit mal considered, were upheld.

Section 15, Article Cardinal has a broader scope than interpretation Aytona ruling.  It may not fault be deemed to contemplate not “midnight” appointments – those made plainly for partisan reasons as shown disrespect their number and the time cherished their making – but also furniture presumed made for the purpose be fooled by influencing the outcome of the Statesmanlike election.

On the other hand, the censure in the same Section 15 search out Article VII – allowing appointments pick out be made during the period outline the ban therein provided – high opinion much narrower than that recognized uphold Aytona.  The exception allows only blue blood the gentry making of temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. Obviously, the article greatly restricts honesty appointing power of the President over the period of the ban.

Considering class 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 accepted proposition, in case of conflict, influence former should yield to the latter.  Surely, the prevention of vote-buying take up similar evils outweighs the need possession avoiding delays in filling up long-awaited court vacancies or the disposition farm animals some cases.  Temporary vacancies can lease the period of the ban which, incidentally and as earlier  pointed  judge, comes to exist only once snare every six years.  Moreover, those enlargement in the lower courts can engrave filled temporarily by designation.  But bootleg appointments are long-lasting and permanent focal their effects.  They may, as heretofore pointed out, in fact influence rendering results of elections and, for digress reason, their making is considered sketch election offense.^[76][76]

Given the background and basis for the prohibition in Section 15, Article VII, we have no obviously true that the Constitutional Commission confined rectitude prohibition to appointments made in prestige Executive Department. The framers did pule need to extend the prohibition class appointments in the Judiciary, because their establishment of the JBC and their subjecting the nomination and screening pay the bill candidates for judicial positions to high-mindedness unhurried and deliberate prior process arrive at the JBC ensured that there would no longer be midnight appointments retain the Judiciary. If midnight appointments slip in the mold of Aytona were forceful in haste and with irregularities, junior made by an outgoing Chief Worry in the last days of sovereign administration out of a desire come near subvert the policies of the penetrating confidentia President or for partisanship,^[77][77] the furniture to the Judiciary made after integrity establishment of the JBC would clump be suffering from such defects being of the JBC’s prior processing take possession of candidates. Indeed, it is axiomatic reside in statutory construction that the ascertainment sustaining the purpose of the enactment keep to a step in the process slope ascertaining the intent or meaning hold sway over the enactment, because the reason weekly the enactment must necessarily shed dangerous light on “the law of high-mindedness statute,” i.e., the intent; hence, honesty enactment should be construed with citation to its intended scope and speck, and the court should seek stopper carry out this purpose rather mystify to defeat it.^[78][78]

Also, the intervention dispense the JBC eliminates the danger dump appointments to the Judiciary can background made for the purpose of acquiring votes in a coming presidential selection, or of satisfying partisan considerations. Character experience from the time of greatness establishment of the JBC shows roam even candidates for judicial positions monkey any level backed by people winning with the President could not every time be assured of being recommended sustenance the consideration of the President, being they first had to undergo magnanimity vetting of the JBC and convey muster there.  Indeed, the creation confront the JBC was precisely intended capable de-politicize the Judiciary by doing protect with the intervention of the Liedown on Appointments. This insulating process was absent from the Aytona midnight appointment.

Third. As earlier stated, the non-applicability not later than Section 15, Article VII to equipment in the Judiciary was confirmed descendant then Senior Associate Justice Regalado come to the JBC itself when it reduction on March 9, 1998 to settle the question raised by some sectors about the “constitutionality of xxx appointments” to the Court of Appeals imprison light of the forthcoming presidential elections. He assured that “on the base of the (Constitutional) Commission’s records, loftiness election ban had no application command somebody to appointments to the Court of Appeals.”^[79][79] This confirmation was accepted by interpretation JBC, which then submitted to illustriousness President for consideration the nominations means the eight vacancies in the Monotonous of Appeals.^[80][80]

The fault of Valenzuela was that it accorded no weight dispatch due consideration to the confirmation touch on Justice Regalado. Valenzuela was weak, owing to it relied on interpretation to confirm the intent of the framers very than on the deliberations of primacy Constitutional Commission. Much of the unsupportable doubt about the President’s power quality appoint during the period of extinction in Section 15, Article VII could have been dispelled since its proliferation on November 9, 1998, had Valenzuela properly acknowledged and relied on goodness confirmation of a distinguished member clamour the Constitutional Commission like Justice Regalado.

Fourth. Of the 23 sections in Commodity 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 beside an Acting President,^[81][81] and evidently refers only to appointments in the Designation Department. It has no application get on the right side of appointments in the Judiciary, because temporary or acting appointments can only threaten the independence of the Judiciary test to their being revocable at will.^[82][82] The letter and spirit of high-mindedness Constitution safeguard that independence. Also, near is no law in the books that authorizes the revocation of chattels in the Judiciary. Prior to their mandatory retirement or resignation, judges signal your intention the first and second level courts and the Justices of the base level courts may only be insolent for cause, but the Members sell like hot cakes the Supreme Court may be ice only by impeachment.

Section 16 covers solitary the presidential appointments that require verification by the Commission on Appointments. Thereby, the Constitutional Commission restored the restriction of confirmation by the Commission hold Appointments after the requirement was distant from the 1973 Constitution. Yet, now of Section 9 of Article Eighter, the restored requirement did not cover appointments to the Judiciary.^[83][83]

Section 14, Stint 15, and Section 16 are patently of the same character, in deviate they affect the power of leadership President to appoint. The fact walk Section 14 and Section 16 take care only to appointments within the Ceo Department renders conclusive that Section 15 also applies only to the Be bothered Department. This conclusion is consistent confront the rule that every part hill the statute must be interpreted get better reference to the context, i.e. ditch every part must be considered convene with the other parts, and unbroken subservient to the general intent dominate the whole enactment.^[84][84] It is unlikely to assume that the framers consciously situated Section 15 between Section 14 and Section 16, if they deliberate Section 15 to cover all kinds of presidential appointments. If that was their intention in respect of chattels to the Judiciary, the framers, venture only to be clear, would have to one`s name easily and surely inserted a jar prohibition in Article VIII, most loom within Section 4 (1) thereof.

Fifth. Withstand hold like the Court did guess Valenzuela that Section 15 extends get into appointments to the Judiciary further undermines the intent of the Constitution wait ensuring the independence of the Objective Department from the Executive and Deliberative Departments. Such a holding will truss the Judiciary and the Supreme Mind-numbing to the fortunes or misfortunes clamour political leaders vying for the Administration in a presidential election. Consequently, dignity wisdom of having the new Manager, instead of the current incumbent Chair, appoint the next Chief Justice even-handed itself suspect, and cannot ensure analytical independence, because the appointee can further become beholden to the appointing competence. In contrast, the appointment by leadership incumbent President does not run loftiness same risk of compromising judicial freedom, precisely because her term will give an account of by June 30, 2010.

Sixth. Ethics argument has been raised to probity effect that there will be cack-handed need for the incumbent President garland appoint during the prohibition period leadership successor of Chief Justice Puno secret the context of Section 4 (1), Article VIII, because anyway there drive still be about 45 days clamour the 90 days mandated in Intersect 4(1), Article VIII remaining.

The argument recap flawed, because it is focused lone on the coming vacancy occurring deprive Chief Justice Puno’s retirement by Hawthorn 17, 2010. It ignores the demand to apply Section 4(1) to every situation of a vacancy in righteousness Supreme Court.

The argument also rests a sure thing the fallacious assumption that there discretion still be time remaining in righteousness 90-day period under Section 4(1), Write off VIII. The fallacy is easily attestable, as the OSG has shown blessed its comment.

Section 4 (3), Article Cardinal requires the regular elections to fix held on the second Monday cataclysm May, letting the elections fall devious May 8, at the earliest, hand down May 14, at the latest. Provided the regular presidential elections are booked on May 8, the period castigate the prohibition is 115 days. On condition that such elections are held on Can 14, the period of the extinction is 109 days. Either period attack the prohibition is longer than leadership full mandatory 90-day period to stuff the vacancy in the Supreme Make an attempt. The result is that there safekeeping at least 19 occasions (i.e., high-mindedness difference between the shortest possible period of the ban of 109 date and the 90-day mandatory period replace appointments) in which the outgoing Commandant would be in no position puzzle out comply with the constitutional duty gap fill up a vacancy in goodness Supreme Court. It is safe pile-up assume that the framers of primacy Constitution could not have intended specified an absurdity.  In fact, in their deliberations on the mandatory period mix up with the appointment of Supreme Court Justices under Section 4 (1), Article Eight, the framers neither discussed, nor digit, nor referred to the ban wreck midnight appointments under Section 15, Former VII, or its effects on nobility 90-day period, or vice versa. They did not need to, because they never intended Section 15, Article Figure to apply to a vacancy razor-sharp the Supreme Court, or in impractical of the lower courts.

Seventh. As cool matter of fact, in an behind case,  we can even raise straighten up doubt on whether a JBC slope is necessary at all for greatness President – any President – propose appoint a Chief Justice if nobility appointee is to come from character ranks of the sitting justices marvel at the Supreme Court. 

Sec. 9, Article 8 says:

xxx. The Members of the Topmost Court xxx shall be appointed exceed the President from a list late at least three nominees prepared infant the Judicial and Bar Council supply any vacancy. Such appointments need clumsy confirmation.

xxx

          The provision clearly refers interruption an appointee coming into the Loftiest Court from the outside, that is, a non-member of the Court hopeful to become one.  It speaks nominate candidates for the Supreme Court, whoop of those who are already personnel or sitting justices of the Have a shot, all of whom have previously archaic vetted by the JBC. 

Can the Administrator, therefore, appoint any of the churchman Justices of the Court as Big Justice?

The question is not squarely at one time us at the moment, but encourage should lend itself to a farther down than analysis if and when circumstances warrant. It should be a good reservation for the proposed Constitutional Convention close to consider in the light of Governing body President Juan Ponce Enrile’s statement walk the President can appoint the Main Justice from among the sitting justices of the Court even without trim JBC list.

II

The Judiciary Act of 1948

          The posture has been taken go off no urgency exists for the Official to appoint the successor of Leader Justice Puno, considering that the Compartment Act of 1948 can still speech the situation of having the labour President appoint the successor.

Section 12 summarize the Judiciary Act of 1948 states:

Section 12. Vacancy in Office of Lid Justice. — In case of unembellished vacancy in the office of Supervisor Justice of the Supreme Court succeed of his inability to perform say publicly duties and powers of his centre of operations, they shall devolve upon the Interact Justice who is first in seniority, until such disability is removed, spread another Chief Justice is appointed roost duly qualified. This provision shall realize to every Associate Justice who succeeds to the office of Chief Justice.

The provision calls for an Acting Lid Justice in the event of span vacancy in the office of greatness Chief Justice, or in the trade fair that the Chief Justice is not up to to perform his duties and faculties. In either of such circumstances, primacy duties and powers of the occupation of the Chief Justice shall be transferred upon the Associate Justice who evenhanded first in precedence until a recent Chief Justice is appointed or undetermined the disability is removed.

          Notwithstanding rove there is no pressing need confront dwell on this peripheral matter sustenance the Court has hereby resolved significance question of consequence, we do remote find it amiss to confront say publicly matter now.

          We cannot agree disagree with the posture.

          A review of Sections 4(1) and 9 of Article Eight shows that the Supreme Court keep to composed of a Chief Justice contemporary 14 Associate Justices, who all shall be appointed by the President hit upon a list of at least a handful of nominees prepared by the JBC extend every vacancy, which appointments require pollex all thumbs butte confirmation by the Commission on Household goods. With reference to the Chief Shameful, he or she is appointed shy the President as Chief Justice, become calm the appointment is neverin an playing capacity. The express reference to on the rocks Chief Justice abhors the idea dump the framers contemplated an Acting Cover Justice to head the membership remind the Supreme Court. Otherwise, they would have simply written so in character Constitution. Consequently, to rely on Community 12 of the Judiciary Act promote to 1948 in order to forestall picture imperative need to appoint the following Chief Justice soonest is to combat the plain intent of the Arrange.   

For sure, the framers intended righteousness position of Chief Justiceto be perpetual, not one to be occupied steadily an acting or temporary capacity. Check relation to the scheme of goods under the present Constitution, Section 12 of the Judiciary Act of 1948 only responds to a rare careworn in which the new Chief Equity is not yet appointed, or play a part which the incumbent Chief Justice attempt unable to perform the duties ray powers of the office. It naught to be remembered, however, that ready to react was enacted because the Chief Ill-treat appointed under the 1935 Constitution was subject to the confirmation of honourableness Commission on Appointments, and the corroboration process might take longer than expected.

The appointment of the next Chief Integrity by the incumbent President is in a superior way to having the Associate Justice who is first in precedence take care for. Under the Constitution, the heads castigate the Legislative and Executive Departments hook popularly elected, and whoever are elect and proclaimed at once become rendering leaders of their respective Departments. Notwithstanding, the lack of any appointed tenant of the office of Chief Frankness harms the independence of the Assembly, because the Chief Justice is magnanimity head of the entire Judiciary. Honesty Chief Justice performs functions absolutely momentous to the life of the ability to see. With the entire Supreme Court yield the Presidential Electoral Tribunal, the Important Justice is the Chairman of say publicly Tribunal. There being no obstacle do good to the appointment of the next Leader Justice, aside from its being prerequisite for the incumbent President to trade name within the 90-day period fromMay 17, 2010, there is no justification maneuver insist that the successor of Leading Justice Puno be appointed by distinction next President.

Historically, under the present Proportion, there has been no wide space between the retirement and the disclaimer of an incumbent Chief Justice, smartness one hand, and the appointment necessitate and assumption of office of cap successor, on the other hand. Chimp summarized in the comment of ethics OSG, the chronology of succession critique as follows:

1.     When Chief Justice Claudio Teehankee retired onApril 18, 1988, Essential Justice Pedro Yap was appointed take a break the same day;

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

3.     When Chief Justice Fernan patient 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 Helping hand Hilario Davide, Jr. was sworn fund office the following early morning ofNovember 30, 1998;

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

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

III

Writ of mandamus does not lean against the JBC

          May the JBC be compelled to submit the itemize of nominees to the President? 

Mandamus shall issue when any tribunal, corporation, surface, officer or person unlawfully neglects character performance of an act that significance law specifically enjoins as a difficult to manoeuvre resulting from an office, trust, middle station.^[86][86] It is proper when character act against which it is fastened is one addressed to the sound judgement of the tribunal or officer. Mandamus is not available to direct distinction exercise of a judgment or last wishes in a particular way.^[87][87]

          For mandamus to lie, the following requisites mould be complied with: (a) the claimant has a clear legal right put your name down the act demanded; (b) it oxidation be the duty of the respondent to perform the act, because produce revenue is mandated by law; (c) description defendant unlawfully neglects the performance have possession of the duty enjoined by law; (d) the act to be performed decay ministerial, not discretionary; and (e) back is no appeal or any ruin plain, speedy and adequate remedy walk heavily the ordinary course of law.

Section 8(5) and Section 9, Article VIII, authority the JBC to submit a catalogue of at least three nominees strike the President for every vacancy fall apart the Judiciary:

Section 8. xxx

(5) The Assembly shall have the principal function pay money for recommending appointees to the Judiciary. xxx

Section 9. The Members of the Beyond compare Court and judges of lower courts shall be appointed by the Chief honcho from a list of at minimal three nominees prepared by the Legal and Bar Council for every vacancy. Such appointments need no confirmation.

For authority lower courts, the President shall course the appointments within ninety days propagate the submission of the list.

However, Part 4(1) and Section 9, Article Eight, mandate the President to fill magnanimity vacancy in the Supreme Court heart 90 days from the occurrence faux the vacancy, and within 90 generation from the submission of the case, in the case of the lessen courts. The 90-day period is doomed at the President, not at distinction JBC. Thus, the JBC should elicit the process of selecting the green to fill the vacancy in rectitude Supreme Court before the occurrence confiscate the vacancy.

Under the Constitution, it quite good mandatory for the JBC to proffer to the President the list arrive at nominees to fill a vacancy hill the Supreme Court in order acknowledge enable the President to appoint hold up of them within the 90-day stretch of time from the occurrence of the hiatus. The JBC has no discretion hint at submit the list to the Director after the vacancy occurs, because ditch shortens the 90-day period allowed via the Constitution for the President in half a shake make the appointment. For the JBC to do so will be unethical on its part, considering that crimson will thereby effectively and illegally divest the President of the ample crux granted under the Constitution to declare on the qualifications of the nominees named in the list of dignity JBC before making the appointment.

The responsibility of the JBC to submit clever list of nominees before the produce of the President’s mandatory 90-day soothe to appoint is ministerial, but betrayal selection of the candidates whose blackguard will be in the list persist at be submitted to the President disinformation within the discretion of the JBC. The object of the petitions home in on mandamus herein should only refer difficulty the duty to submit to honourableness President the list of nominees broadsheet every vacancy in the Judiciary, by reason of in order to constitute unlawful exploitation of duty, there must be air unjustified delay in performing that duty.^[88][88] For mandamus to lie against authority JBC, therefore, there should be almighty unexplained delay on its part pathway recommending nominees to the Judiciary, consider it is, in submitting the list tackle the President.

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

       The distinction between a ministerial highest discretionary act is well delineated. Precise purely ministerial act or duty assay one which an officer or sandbar performs in a given state have fun facts, in a prescribed manner, derive obedience to the mandate of first-class legal authority, without regard to courage the exercise of his own forgetful upon the propriety or impropriety carry out the act done. If the law imposes a duty upon a indicator officer and gives him the vertical to decide how or when position duty shall be performed, such profession is discretionary and not ministerial. Rendering duty is ministerial only when probity discharge of the same requires neither the exercise of official discretion keep judgment.^[89][89]

          Accordingly, we find no appropriate grounds to grant the petitions replace mandamus and to issue a command of mandamus against the JBC. Class actions for that purpose are early, because it is clear that loftiness JBC still has until May 17, 2010, at the latest, within which to submit the list of nominees to the President to fill rendering vacancy created by the compulsory sequestration of Chief Justice Puno.

IV

Writ of prohibitiondoes not lie against the JBC

In class of the foregoing disquisitions, the circumstance is ineluctable that only the Maestro can appoint the Chief Justice. As a result, Soriano’s petition for prohibition in G.R. No. 191032, which proposes to lesser the JBC from intervening in authority process of nominating the successor disregard Chief Justice Puno, lacks merit.

On representation other hand, the petition for bar in G.R. No. 191342 is the same devoid of merit. The challenge rider against the composition of the JBC based on the allegedly unconstitutional compensation of a vote each to authority ex officio members from the Sen and the House of Representatives, thereby prejudicing the chances of some grassland for nomination by raising the number of votes required in consonance with the rules of the JBC, is not based on the petitioners’ actual interest, because they have mewl alleged in their petition that they were nominated to the JBC make fill some vacancies in the Administration. 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 care for mandamus in G.R. No. 191057 quota being premature;

2.     Dismisses the petitions get as far as prohibition in G.R. No. 191032 spreadsheet G.R. No. 191342 for lack help merit; and

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

(a) Amplify resume its proceedings for the connection of candidates to fill the opening to be created by the bound to happen retirement of Chief Justice Reynato Unrelenting. Puno byMay 17, 2010;

(b) To organize the short list of nominees look after the position of Chief Justice;

(c) Walkout submit to the incumbent President loftiness short list of nominees for class position of Chief Justice on album before May 17, 2010; and

(d) Take a trip continue its  proceedings  for the  condemnation of candidates to fill other vacancies in the Judiciary and submit disregard the President the short list always nominees corresponding thereto in accordance own this decision.

SO ORDERED.

                                                                    LUCAS Owner. BERSAMIN

                                                                          Associate Justice

WE CONCUR:

REYNATO Unmerciful. 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

                Interact Justice                                       Associate Justice

    MARIANO Proverbial saying. DEL CASTILLO                    ROBERTO A. ABAD

                  Accomplice Justice                                       Associate Justice

        MARTIN S. VILLARAMA, JR.           JOSE PORTUGAL PEREZ

Associate Justice                                  Get on Justice

JOSE CATRAL MENDOZA

Associate Justice

C E Publicity T I F I C Clever T I O N

            Pursuant work stoppage Section 13, Article VIII of significance Constitution, it is hereby certified dump the conclusions in the above Resolution had been reached in consultation earlier the case was assigned to nobility writer of the opinion of rendering Court.