Republic of the Philippines SUPREME COURT Baguio City EN BANC G.R. No.

191002 April 20, 2010

ARTURO M. DE CASTRO, Petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC) !" PRESIDENT GLORIA MACAPAGAL # ARRO$O, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 1910%2 JAIME N. SORIANO, Petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC), Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 1910&' P(ILIPPINE CONSTITUTION ASSOCIATION (P(ILCONSA), Petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC), Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x A.M. No. 10#2#&#SC IN RE APPLICABILIT$ O) SECTION 1&, ARTICLE *II O) T(E CONSTITUTION TO APPOINTMENTS TO T(E JUDICIAR$, ESTELITO P. MENDO+A, Petitioner, x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 1911,9 JO(N G. PERALTA, Petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC). Respondent. PETER IR*ING COR*ERA- C(RISTIAN ROBERT S. LIM- AL)ONSO *. TAN, JR.- NATIONAL UNION O) PEOPLE.S LA/$ERS- MARLOU B. UBANO- INTEGRATED BAR O) T(E P(ILIPPINES#DA*AO DEL SUR C(APTER, r0pr010!20" 34 i21 I550"i 20 P 12 Pr01i"0!2, ATT$. ISRAELITO P. TORREON, !" 260 l 220r i! 6i1 o7! p0r1o! l 8 p 8i24 1 MEMBER o9 260 P(ILIPPINE BAR- MITC(ELL JO(N L. BOISER- BAGONG AL$ANSANG BA$AN (BA$AN) C(AIRMAN DR. CAROLINA P. ARAULLO- BA$AN SECRETAR$ GENERAL RENATO M. RE$ES, JR.- CON)EDERATION )OR UNIT$, RECOGNITION AND AD*ANCE#MENT O) GO*ERNMENT EMPLO$EES (COURAGE) C(AIRMAN )ERDINAND GAITE- :ALIPUNAN NG DAMA$ANG MA(I(IRAP (:ADAMA$) SECRETAR$ GENERAL GLORIA ARELLANO- AL$ANSA NG NAG:A:AISANG :ABATAAN NG SAMBA$ANAN PARA SA :AUNLARAN (ANA:BA$AN) C(AIRMAN :EN LEONARD RAMOS- TA$O ANG PAG#ASA CON*ENOR AL*IN PETERS- LEAGUE O) )ILIPINO STUDENTS (L)S) C(AIRMAN JAMES MAR: TERR$ LACUANAN RIDON- NATIONAL UNION O) STUDENTS O) T(E P(ILIPPINES (NUSP) C(AIRMAN EINSTEIN RECEDESCOLLEGE EDITORS GUILD O) T(E P(ILIPPINES (CEGP) C(AIRMAN *IJAE AL;UISOLA- !" STUDENT C(RISTIAN MO*EMENT O) T(E P(ILIPPINES (SCMP) C(AIRMAN MA. CRISTINA ANGELA GUE*ARRA- /ALDEN ). BELLO !" LORETTA ANN P. ROSALES- /OMEN TRIAL LA/$ERS ORGANI+ATION O) T(E P(ILIPPINES, r0pr010!20" 34 $OLANDA ;UISUMBING#JA*ELLANA- BELLE+A ALOJADO DEMAISIP- TERESITA GANDIONCO#OLEDAN- MA. *ERENA :ASILAG# *ILLANUE*A- MARIL$N STA. ROMANA- LEONILA DE JESUS- !" GUINE*ERE DE LEON- A;UILINO ;. PIMENTEL, JR.- ntervenors. x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 191%,2 ATT$. AMADOR +. TOLENTINO, JR., (IBP Go<0r!or#So=260r! L=>o!), !" ATT$. ROLAND B. INTING (IBP !overnor-Eastern "isayas#, Petitioners, vs. JUDICIAL AND BAR COUNCIL (JBC), Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 191,20 P(ILIPPINE BAR ASSOCIATION, INC., Petitioner, vs. JUDICIAL AND BAR COUNCIL !" (ER E?CELLENC$ GLORIA MACAPAGAL#ARRO$O, Respondents. RE$%&'( %N BERSAMIN, J.: %n )arch *+, ,-*-, the Court pro.ulgated its decision, holding/ 01ERE2%RE, the Court/ *. 3is.isses the petitions for certiorari and .anda.us in !.R. No. *4*--, and !.R. No. *4**54, and the petition for .anda.us in !.R. No. *4*-6+ for being pre.ature7 ,. 3is.isses the petitions for prohibition in !.R. No. *4*-8, and !.R. No. *4*85, for lac9 of .erit7 and 8. !rants the petition in A.). No. *--,-6-$C and, accordingly, directs the :udicial and Bar Council/ ;a# (o resu.e its proceedings for the no.ination of candidates to fill the vacancy to be created by the co.pulsory retire.ent of Chief :ustice Reynato $. Puno by )ay *+, ,-*-7 ;b# (o prepare the short list of no.inees for the position of Chief :ustice7 ;c# (o sub.it to the incu.bent President the short list of no.inees for the position of Chief :ustice on or before )ay *+, ,-*-7 and ;d# (o continue its proceedings for the no.ination of candidates to fill other vacancies in the :udiciary and sub.it to the President the short list of no.inees corresponding thereto in accordance <ith this decision. $% %R3ERE3. )otions for Reconsideration Petitioners :ai.e N. $oriano ;!.R. No. *4*-8,#, A.ador =. (olentino and Roland B. nting ;!.R. No. *4*85,#, and Philippine Bar Association ;!.R. No. *4*5,-#, as <ell as intervenors ntegrated Bar of the Philippines-3avao del $ur ; BP-3avao del $ur, et al.#7 Christian Robert $. &i.7 Peter rving Corvera7 Bagong Alyansang Bayan and others ;BA>AN, et al.#7 Alfonso ". (an, :r.7 the 0o.en (rial &a<yers %rgani?ation of the Philippines ;0(&%P#7 )arlou B. 'bano7 )itchell :ohn &. Boiser7 and 0alden 2. Bello and &oretta Ann P. Rosales ;Bello, et al.#, filed their respective .otions for reconsideration. Also filing a .otion for reconsideration <as $enator A@uilino A. Pi.entel, :r., <hose belated intervention <as allo<ed. 0e su..ari?e the argu.ents and sub.issions of the various .otions for reconsideration, in the aforegiven order/ $oriano *. (he Court has not s@uarely ruled upon or addressed the issue of <hether or not the po<er to designate the Chief :ustice belonged to the $upre.e Court en banc.

,. (he )endo?a petition should have been dis.issed, because it sought a .ere declaratory Budg.ent and did not involve a Busticiable controversy. 8. All :ustices of the Court should participate in the next deliberations. (he .ere fact that the Chief :ustice sits as ex officio head of the :BC should not prevail over the .ore co.pelling state interest for hi. to participate as a )e.ber of the Court. (olentino and nting *. A plain reading of $ection *6, Article " does not lead to an interpretation that exe.pts Budicial appoint.ents fro. the express ban on .idnight appoint.ents. ,. n excluding the :udiciary fro. the ban, the Court has .ade distinctions and has created exe.ptions <hen none exists. 8. (he ban on .idnight appoint.ents is placed in Article " , not in Article " , because it li.its an executive, not a Budicial, po<er. 5. Resort to the deliberations of the Constitutional Co..ission is superfluous, and is po<erless to vary the ter.s of the clear prohibition. 6. (he Court has given too .uch credit to the position ta9en by :ustice Regalado. (hereby, the Court has raised the Constitution to the level of a venerated text <hose intent can only be divined by its fra.ers as to be outside the real. of understanding by the sovereign people that ratified it. C. "alen?uela should not be reversed. +. (he petitioners, as taxpayers and la<yers, have the clear legal standing to @uestion the illegal co.position of the :BC. Philippine Bar Association *. (he CourtDs strained interpretation of the Constitution violates the basic principle that the Court should not for.ulate a rule of constitutional la< broader than <hat is re@uired by the precise facts of the case. ,. Considering that $ection *6, Article " is clear and straightfor<ard, the only duty of the Court is to apply it. (he provision expressly and clearly provides a general li.itation on the appointing po<er of the President in prohibiting the appoint.ent of any person to any position in the !overn.ent <ithout any @ualification and distinction. 8. (he Court gravely erred in unilaterally ignoring the constitutional safeguard against .idnight appoint.ents. 5. (he Constitution has installed t<o constitutional safeguards/- the prohibition against .idnight appoint.ents, and the creation of the :BC. t is not <ithin the authority of the Court to prefer one over the other, for the CourtDs duty is to apply the safeguards as they are, not as the Court li9es the. to be. 6. (he Court has erred in failing to apply the basic principles of statutory construction in interpreting the Constitution. C. (he Court has erred in relying heavily on the title, chapter or section headings, despite precedents on statutory construction holding that such headings carried very little <eight. +. (he Constitution has provided a general rule on .idnight appoint.ents, and the only exception is that on te.porary appoint.ents to executive positions. E. (he Court has erred in directing the :BC to resu.e the proceedings for the no.ination of the candidates to fill the vacancy to be created by the co.pulsory retire.ent of Chief :ustice Puno <ith a vie< to sub.itting the list of no.inees for Chief :ustice to President Arroyo on or before )ay *+, ,-*-. (he Constitution grants the Court only the po<er of supervision over the :BC7 hence, the Court cannot tell the :BC <hat to do, ho< to do it, or <hen to do it, especially in the absence of a real and Busticiable case assailing any specific action or inaction of the :BC. 4. (he Court has engaged in rendering an advisory opinion and has indulged in speculations.

*-. (he constitutional ban on appoint.ents being already in effect, the CourtDs directing the :BC to co.ply <ith the decision constitutes a culpable violation of the Constitution and the co..ission of an election offense. **. (he Court cannot reverse on the basis of a secondary authority a doctrine unani.ously for.ulated by the Court en banc. *,. (he practice has been for the .ost senior :ustice to act as Chief :ustice <henever the incu.bent is indisposed. (hus, the appoint.ent of the successor Chief :ustice is not urgently necessary. *8. (he principal purpose for the ban on .idnight appoint.ents is to arrest any atte.pt to prolong the outgoing PresidentDs po<ers by .eans of proxies. (he atte.pt of the incu.bent President to appoint the next Chief :ustice is undeniably intended to perpetuate her po<er beyond her ter. of office. BP-3avao del $ur, et al. *. ts language being una.biguous, $ection *6, Article " of the Constitution applies to appoint.ents to the :udiciary. 1ence, no cogent reason exists to <arrant the reversal of the "alen?uela pronounce.ent. ,. $ection *C, Article " of the Constitution provides for presidential appoint.ents to the Constitutional Co..issions and the :BC <ith the consent of the Co..ission on Appoint.ents. ts phrase Fother officers <hose appoint.ents are vested in hi. in this ConstitutionF is enough proof that the li.itation on the appointing po<er of the President extends to appoint.ents to the :udiciary. (hus, $ection *5, $ection *6, and $ection *C of Article " apply to all presidential appoint.ents in the Executive and :udicial Branches of the !overn.ent. 8. (here is no evidence that the fra.ers of the Constitution abhorred the idea of an Acting Chief :ustice in all cases. &i. *. (here is no Busticiable controversy that <arrants the CourtDs exercise of Budicial revie<. ,. (he election ban under $ection *6, Article " applies to appoint.ents to fill a vacancy in the Court and to other appoint.ents to the :udiciary. 8. (he creation of the :BC does not Bustify the re.oval of the safeguard under $ection *6 of Article " against .idnight appoint.ents in the :udiciary. Corvera *. (he CourtDs exclusion of appoint.ents to the :udiciary fro. the Constitutional ban on .idnight appoint.ents is based on an interpretation beyond the plain and une@uivocal language of the Constitution. ,. (he intent of the ban on .idnight appoint.ents is to cover appoint.ents in both the Executive and :udicial 3epart.ents. (he application of the principle of verba legis ;ordinary .eaning# <ould have obviated d<elling on the organi?ation and arrange.ent of the provisions of the Constitution. f there is any a.biguity in $ection *6, Article " , the intent behind the provision, <hich is to prevent political partisanship in all branches of the !overn.ent, should have controlled. 8. A plain reading is preferred to a contorted and strained interpretation based on co.part.entali?ation and physical arrange.ent, especially considering that the Constitution .ust be interpreted as a <hole. 5. Resort to the deliberations or to the personal interpretation of the fra.ers of the Constitution should yield to the plain and une@uivocal language of the Constitution. 6. (here is no sufficient reason for reversing "alen?uela, a ruling that is reasonable and in accord <ith the Constitution. BA>AN, et al. *. (he Court erred in granting the petition in A.). No. *--,-6-$C, because the petition did not present a Busticiable controversy. (he issues it raised <ere not yet ripe for adBudication, considering that the office of the Chief :ustice <as not yet vacant and that the :BC itself has yet to decide <hether or not to sub.it a list of no.inees to the President.

,. (he collective <isdo. of "alen?uela Court is .ore i.portant and co.pelling than the opinion of :ustice Regalado. 8. n ruling that $ection *6, Article " is in conflict <ith $ection 5;*#, Article " , the Court has violated the principle of ut .agis valeat @ua. pereat ;<hich .andates that the Constitution should be interpreted as a <hole, such that any conflicting provisions are to be har.oni?ed as to fully give effect to all#. (here is no conflict bet<een the provisions7 they co.ple.ent each other. 5. (he for. and structure of the ConstitutionDs titles, chapters, sections, and drafts.anship carry little <eight in statutory construction. (he clear and plain language of $ection *6, Article " precludes interpretation. (an, :r. *. (he factual antecedents do not present an actual case or controversy. (he clash of legal rights and interests in the present case are .erely anticipated. Even if it is anticipated <ith certainty, no actual vacancy in the position of the Chief :ustice has yet occurred. ,. (he ruling that $ection *6, Article " does not apply to a vacancy in the Court and the :udiciary runs in conflict <ith long standing principles and doctrines of statutory construction. (he provision ad.its only one exception, te.porary appoint.ents in the Executive 3epart.ent. (hus, the Court should not distinguish, because the la< itself .a9es no distinction. 8. "alen?uela <as erroneously reversed. (he fra.ers of the Constitution clearly intended the ban on .idnight appoint.ents to cover the .e.bers of the :udiciary. 1ence, giving .ore <eight to the opinion of :ustice Regalado to reverse the en banc decision in "alen?uela <as un<arranted. 5. $ection *6, Article " is not inco.patible <ith $ection 5;*#, Article " . (he 4--day .andate to fill any vacancy lasts until August *6, ,-*-, or a .onth and a half after the end of the ban. (he next President has roughly the sa.e ti.e of 56 days as the incu.bent President ;i.e., 55 days# <ithin <hich to scrutini?e and study the @ualifications of the next Chief :ustice. (hus, the :BC has .ore than enough opportunity to exa.ine the no.inees <ithout haste and political uncertainty.1avvphi1 6. 0hen the constitutional ban is in place, the 4--day period under $ection 5;*#, Article " is suspended.

C. (here is no basis to direct the :BC to sub.it the list of no.inees on or before )ay *+, ,-*-. (he directive to the :BC sanctions a culpable violation of the Constitution and constitutes an election offense. +. (here is no pressing necessity for the appoint.ent of a Chief :ustice, because the Court sits en banc, even <hen it acts as the sole Budge of all contests relative to the election, returns and @ualifications of the President and "icePresident. 2ourteen other )e.bers of the Court can validly co.prise the Presidential Electoral (ribunal. 0(&%P *. (he Court exceeded its Burisdiction in ordering the :BC to sub.it the list of no.inees for Chief :ustice to the President on or before )ay *+, ,-*-, and to continue its proceedings for the no.ination of the candidates, because it granted a relief not prayed for7 i.posed on the :BC a deadline not provided by la< or the Constitution7 exercised control instead of .ere supervision over the :BC7 and lac9ed sufficient votes to reverse "alen?uela. ,. n interpreting $ection *6, Article " , the Court has ignored the basic principle of statutory construction to the effect that the literal .eaning of the la< .ust be applied <hen it is clear and una.biguous7 and that <e should not distinguish <here the la< does not distinguish. 8. (here is no urgency to appoint the next Chief :ustice, considering that the :udiciary Act of *45E already provides that the po<er and duties of the office devolve on the .ost senior Associate :ustice in case of a vacancy in the office of the Chief :ustice. 'bano *. (he language of $ection *6, Article " , being clear and une@uivocal, needs no interpretation ,. (he Constitution .ust be construed in its entirety, not by resort to the organi?ation and arrange.ent of its provisions.

8. (he opinion of :ustice Regalado is irrelevant, because $ection *6, Article " and the pertinent records of the Constitutional Co..ission are clear and una.biguous. 5. (he Court has erred in ordering the :BC to sub.it the list of no.inees to the President by )ay *+, ,-*- at the latest, because no specific la< re@uires the :BC to sub.it the list of no.inees even before the vacancy has occurred. Boiser *. 'nder $ection *6, Article " , the only exe.ption fro. the ban on .idnight appoint.ents is the te.porary appoint.ent to an executive position. (he li.itation is in 9eeping <ith the clear intent of the fra.ers of the Constitution to place a restriction on the po<er of the outgoing Chief Executive to .a9e appoint.ents. ,. (o exe.pt the appoint.ent of the next Chief :ustice fro. the ban on .idnight appoint.ents .a9es the appointee beholden to the outgoing Chief Executive, and co.pro.ises the independence of the Chief :ustice by having the outgoing President be continually influential. 8. (he CourtDs reversal of "alen?uela <ithout stating the sufficient reason violates the principle of stare decisis. Bello, et al. *. $ection *6, Article " does not distinguish as to the type of appoint.ents an outgoing President is prohibited fro. .a9ing <ithin the prescribed period. Plain textual reading and the records of the Constitutional Co..ission support the vie< that the ban on .idnight appoint.ents extends to Budicial appoint.ents. ,. $upervision of the :BC by the Court involves oversight. (he subordinate subBect to oversight .ust first act not in accord <ith prescribed rules before the act can be redone to confor. to the prescribed rules. 8. (he Court erred in granting the petition in A.). No. *--,-6-$C, because the petition did not present a Busticiable controversy. Pi.entel *. Any constitutional interpretative changes .ust be reasonable, rational, and confor.able to the general intent of the Constitution as a li.itation to the po<ers of !overn.ent and as a bastion for the protection of the rights of the people. (hus, in har.oni?ing see.ingly conflicting provisions of the Constitution, the interpretation should al<ays be one that protects the citi?enry fro. an ever expanding grant of authority to its representatives. ,. (he decision expands the constitutional po<ers of the President in a .anner totally repugnant to republican constitutional de.ocracy, and is tanta.ount to a Budicial a.end.ent of the Constitution <ithout proper authority. Co..ents (he %ffice of the $olicitor !eneral ;%$!# and the :BC separately represent in their respective co..ents, thus/ %$! *. (he :BC .ay be co.pelled to sub.it to the President a short list of its no.inees for the position of Chief :ustice. ,. (he incu.bent President has the po<er to appoint the next Chief :ustice. 8. $ection *6, Article " does not apply to the :udiciary. 5. (he principles of constitutional construction favor the exe.ption of the :udiciary fro. the ban on .idnight appoint.ents.1awph!1 6. (he Court has the duty to consider and resolve all issues raised by the parties as <ell as other related .atters. :BC

*. (he consolidated petitions should have been dis.issed for pre.aturity, because the :BC has not yet decided at the ti.e the petitions <ere filed <hether the incu.bent President has the po<er to appoint the ne< Chief :ustice, and because the :BC, having yet to intervie< the candidates, has not sub.itted a short list to the President. ,. (he state.ent in the decision that there is a doubt on <hether a :BC short list is necessary for the President to appoint a Chief :ustice should be struc9 do<n as bereft of constitutional and legal basis. (he state.ent under.ines the independence of the :BC. 8. (he :BC <ill abide by the final decision of the Court, but in accord <ith its constitutional .andate and its i.ple.enting rules and regulations. 2or his part, petitioner Estelito P. )endo?a ;A.). No. *--,-6-$C# sub.its his co..ent even if the %$! and the :BC <ere the only ones the Court has re@uired to do so. 1e states that the .otions for reconsideration <ere directed at the ad.inistrative .atter he initiated and <hich the Court resolved. 1is co..ent asserts/ *. (he grounds of the .otions for reconsideration <ere already resolved by the decision and the separate opinion. ,. (he ad.inistrative .atter he brought invo9ed the CourtDs po<er of supervision over the :BC as provided by $ection E;*#, Article " of the Constitution, as distinguished fro. the CourtDs adBudicatory po<er under $ection *, Article " . n the for.er, the re@uisites for Budicial revie< are not re@uired, <hich <as <hyValenzuela <as doc9eted as an ad.inistrative .atter. Considering that the :BC itself has yet to ta9e a position on <hen to sub.it the short list to the proper appointing authority, it has effectively solicited the exercise by the Court of its po<er of supervision over the :BC. 8. (o apply $ection *6, Article " to $ection 5;*# and $ection 4, Article " is to a.end the Constitution.

5. (he portions of the deliberations of the Constitutional Co..ission @uoted in the dissent of :ustice Carpio )orales, as <ell as in so.e of the .otions for reconsideration do not refer to either $ection *6, Article " or $ection 5;*#, Article " , but to $ection *8, Article " ;on nepotis.#. Ruling 0e deny the .otions for reconsideration for lac9 of .erit, for all the .atters being thereby raised and argued, not being ne<, have all been resolved by the decision of )arch *+, ,-*-. Nonetheless, the Court opts to d<ell on so.e .atters only for the purpose of clarification and e.phasis. 2irst/ )ost of the .ovants contend that the principle of stare decisis is controlling, and accordingly insist that the Court has erred in disobeying or abandoning "alen?uela.* (he contention has no basis. $tare decisis derives its na.e fro. the &atin .axi. stare decisis et non @uieta .overe, i.e., to adhere to precedent and not to unsettle things that are settled. t si.ply .eans that a principle underlying the decision in one case is dee.ed of i.perative authority, controlling the decisions of li9e cases in the sa.e court and in lo<er courts <ithin the sa.e Burisdiction, unless and until the decision in @uestion is reversed or overruled by a court of co.petent authority. (he decisions relied upon as precedents are co..only those of appellate courts, because the decisions of the trial courts .ay be appealed to higher courts and for that reason are probably not the best evidence of the rules of la< laid do<n. , :udicial decisions assu.e the sa.e authority as a statute itself and, until authoritatively abandoned, necessarily beco.e, to the extent that they are applicable, the criteria that .ust control the actuations, not only of those called upon to abide by the., but also of those duty-bound to enforce obedience to the..8 n a hierarchical Budicial syste. li9e ours, the decisions of the higher courts bind the lo<er courts, but the courts of co-ordinate authority do not bind each other. (he one highest court does not bind itself, being invested <ith the innate authority to rule according to its best lights. 5 (he Court, as the highest court of the land, .ay be guided but is not controlled by precedent. (hus, the Court, especially <ith a ne< .e.bership, is not obliged to follo< blindly a particular decision that it deter.ines, after re-exa.ination, to call for a rectification.6 (he adherence to precedents is strict and rigid in a co..on-la< setting li9e the 'nited Gingdo., <here Budges .a9e la< as binding as an Act of Parlia.ent.C But ours is not a co..on-la< syste.7 hence, Budicial precedents are not al<ays strictly and rigidly follo<ed. A Budicial pronounce.ent in an earlier decision .ay be follo<ed as a precedent in a subse@uent case only <hen its reasoning and Bustification are relevant, and the court in the latter case accepts such reasoning and Bustification to be applicable to the case. (he application of the precedent is for the sa9e of convenience and stability.

2or the intervenors to insist that "alen?uela ought not to be disobeyed, or abandoned, or reversed, and that its <isdo. should guide, if not control, the Court in this case is, therefore, devoid of rationality and foundation. (hey see. to conveniently forget that the Constitution itself recogni?es the innate authority of the Court en banc to .odify or reverse a doctrine or principle of la< laid do<n in any decision rendered en banc or in division.+ $econd/ $o.e intervenors are grossly .isleading the public by their insistence that the Constitutional Co..ission extended to the :udiciary the ban on presidential appoint.ents during the period stated in $ection *6, Article " . (he deliberations that the dissent of :ustice Carpio )orales @uoted fro. the records of the Constitutional Co..ission did not concern either $ection *6, Article " or $ection 5;*#, Article " , but only $ection *8, Article " , a provision on nepotis.. (he records of the Constitutional Co..ission sho< that Co..issioner 1ilario !. 3avide, :r. had proposed to include Budges and Bustices related to the President <ithin the fourth civil degree of consanguinity or affinity a.ong the persons <ho. the President .ight not appoint during his or her tenure. n the end, ho<ever, Co..issioner 3avide, :r. <ithdre< the proposal to include the :udiciary in $ection *8, Article " F;t#o avoid any further co.plication,FE such that the final version of the second paragraph of $ection *8, Article " even co.pletely o.its any reference to the :udiciary, to <it/ $ection *8. xxx (he spouse and relatives by consanguinity or affinity <ithin the fourth civil degree of the President shall not during his tenure be appointed as )e.bers of the Constitutional Co..issions, or the %ffice of the %.buds.an, or as $ecretaries, 'ndersecretaries, chair.en or heads of bureaus or offices, including govern.ent-o<ned or controlled corporations and their subsidiaries. &ast/ (he .ovants ta9e the .aBority to tas9 for holding that $ection *6, Article " does not apply to appoint.ents in the :udiciary. (hey aver that the Court either ignored or refused to apply .any principles of statutory construction. (he .ovants gravely err in their posture, and are the.selves apparently contravening their avo<ed reliance on the principles of statutory construction. 2or one, the .ovants, disregarding the absence fro. $ection *6, Article " of the express extension of the ban on appoint.ents to the :udiciary, insist that the ban applied to the :udiciary under the principle of verba legis. (hat is self-contradiction at its <orst. Another instance is the .ovantsD unhesitating <illingness to read into $ection 5;*# and $ection 4, both of Article " , the express applicability of the ban under $ection *6, Article " during the period provided therein, despite the silence of said provisions thereon. >et, construction cannot supply the o.ission, for doing so <ould generally constitute an encroach.ent upon the field of the Constitutional Co..ission. Rather, $ection 5;*# and $ection 4 should be left as they are, given that their .eaning is clear and explicit, and no <ords can be interpolated in the..4 nterpolation of <ords is unnecessary, because the la< is .ore than li9ely to fail to express the legislative intent <ith the interpolation. n other <ords, the addition of ne< <ords .ay alter the thought intended to be conveyed. And, even <here the .eaning of the la< is clear and sensible, either <ith or <ithout the o.itted <ord or <ords, interpolation is i.proper, because the pri.ary source of the legislative intent is in the language of the la< itself. *(hus, the decision of )arch *+, ,-*- has fittingly observed/ 1ad the fra.ers intended to extend the prohibition contained in $ection *6, Article " to the appoint.ent of )e.bers of the $upre.e Court, they could have explicitly done so. (hey could not have ignored the .eticulous ordering of the provisions. (hey <ould have easily and surely <ritten the prohibition .ade explicit in $ection *6, Article " as being e@ually applicable to the appoint.ent of )e.bers of the $upre.e Court in Article " itself, .ost li9ely in $ection 5 ;*#, Article " . (hat such specification <as not done only reveals that the prohibition against the President or Acting President .a9ing appoint.ents <ithin t<o .onths before the next presidential elections and up to the end of the PresidentDs or Acting PresidentDs ter. does not refer to the )e.bers of the $upre.e Court. 0e cannot per.it the .eaning of the Constitution to be stretched to any unintended point in order to suit the purposes of any @uarter. 2inal 0ord t has been insinuated as part of the pole.ics attendant to the controversy <e are resolving that because all the )e.bers of the present Court <ere appointed by the incu.bent President, a .aBority of the. are no< granting to her the authority to appoint the successor of the retiring Chief :ustice. (he insinuation is .isguided and utterly unfair.

(he )e.bers of the Court vote on the sole basis of their conscience and the .erits of the issues. Any clai. to the contrary proceeds fro. .alice and condescension. Neither the outgoing President nor the present )e.bers of the Court had arranged the current situation to happen and to evolve as it has. None of the )e.bers of the Court could have prevented the )e.bers co.posing the Court <hen she assu.ed the Presidency about a decade ago fro. retiring during her prolonged ter. and tenure, for their retire.ents <ere .andatory. >et, she is no< left <ith an i.perative duty under the Constitution to fill up the vacancies created by such inexorable retire.ents <ithin 4- days fro. their occurrence. 1er official duty she .ust co.ply <ith. $o .ust <e ours <ho are tas9ed by the Constitution to settle the controversy. ACC%R3 N!&>, the .otions for reconsideration are denied <ith finality. $% %R3ERE3. LUCAS P. BERSAMIN Associate :ustice 0E C%NC'R/ RE$NATO S. PUNO Chief :ustice

ANTONIO T. CARPIO Associate :ustice CONC(ITA CARPIO MORALES Associate :ustice ANTONIO EDUARDO B. NAC(URA Associate :ustice ARTURO D. BRION Associate :ustice MARIANO C. DEL CASTILLO Associate :ustice MARTIN S. *ILLARAMA, JR. Associate :ustice

RENATO C. CORONA Associate :ustice PRESBITERO J. *ELASCO, JR. Associate :ustice TERESITA J. LEONARDO#DE CASTRO Associate :ustice DIOSDADO M. PERALTA Associate :ustice ROBERTO A. ABAD Associate :ustice JOSE PORTUGAL PERE+ Associate :ustice

JOSE CATRAL MENDO+A Associate :ustice CER( 2 CA( %N Pursuant to $ection *8, Article " of the Constitution, it is hereby certified that the conclusions in the above Resolution had been reached in consultation before the case <as assigned to the <riter of the opinion of the Court. RE$NATO S. PUNO Chief :ustice

)oo2!o201
*

n Re Appoint.ents 3ated )arch 8-, *44E of 1on. )ateo A. "alen?uela and 1on. Placido B. "allarta as :udges of the Regional (rial Court of Branch C,, Bago City and of Branch ,5, Cabanatuan City, respectively, A.). No. 4E-6--*-$C, Nove.ber 4, *44E, ,4E $CRA 5-E.

Price H Bitner, Effective &egal Research, &ittle, Bro<n H Co., Ne< >or9 ;*4C,#, I 4.+. Caltex ;Phil.#, nc. v. Palo.ar, No. &-*4C6-, $epte.ber ,4, *4CC, *E $CRA ,5+ E.g., 3ias, :urisprudence, Butter<orths, &ondon, *4E6, 2ifth Edition, p. *,+. &i.9et9ai $ons )illing, nc. v. Court of Appeals, !.R. No. **E6-4, $epte.ber 6, *44C, ,C* $CRA 5C5.

$ee Calabresi, A Co..on &a< for the Age of $tatutes, 1arvard 'niversity Press, p. 5 ;*4E,# and endnote *, of the page, <hich essentially recounts that the strict application of the doctrine of stare decisis is true only in a co..on-la< Burisdiction li9e England ;citing 0ise, (he 3octrine of $tare 3ecisis, ,* 0ayne &a< Revie<, *-58, *-5C-*-5+ ;*4+6#. Calabresi recalls that the English 1ouse of &ords decided in *E4E ;&ondon (ra.<ays Co. v. &ondon County Council, A.C. 8+6# that they could not alter precedents laid do<n by the 1ouse of &ords acting as the supre.e court in previous cases, but that such precedents could only be altered by an Act of Parlia.ent, for to do other<ise <ould .ean that the courts <ould usurp legislative function7 he .entions that in *4CC, &ord Chancellor !ardiner announced in a Practice $tate.ent a 9ind of general .e.orandu. fro. the court that <hile/ F(heir &ordships regard the use of precedent as an indispensable foundation upon <hich to decide <hat is the la<,F they Fnevertheless recogni?e that too rigid adherence to precedent .ay lead to inBustice in a particular case and also unduly restrict the proper develop.ent of the la<. (hey propose, therefore, to .odify their present practice and, <hile treating for.er decisions of this 1ouse as nor.ally binding, to depart fro. a previous decision <hen it appears right to do so.F ;Calabresi cites &each, Revisionis. in the 1ouse of &ords/ (he Bastion of Rigid $tare 3ecisis 2alls, E- 1arvard &a< Revie<, +4+ ;*4C+#.
+

$ection 5 ;,#, Article " , provides/ xxx ;8# Cases or .atters heard by a division shall be decided or resolved <ith the concurrence of a .aBority of the )e.bers <ho actually too9 part in the deliberations on the issues in the case and voted thereon, and in no case, <ithout the concurrence of at least three of such )e.bers. 0hen the re@uired nu.ber is not obtained, the case shall be decided en banc7 Provided, that no doctrine or principle of la< laid do<n by the court in a decision rendered en banc or in division .ay be .odified or reversed except by the court sitting en banc.

Record of the *4EC Constitutional Co..ission, "ol. ,, :uly 8*, *4EC, RCC No. 55. pp. 65,-658. $.ith v. $tate, CC )d. ,*6, + Atl. 54. $tate ex rel Everding v. $i.on, ,- %re. 8C6, ,C Pac. *+-.

*-

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION CARPIO MORALES, J.: No co.pelling reason exists for the Court to deny a reconsideration of the assailed 3ecision. (he various .otions for reconsideration raise hollering substantial argu.ents and legiti.ately nagging @uestions <hich the Court .ust .eet head on. f this Court is to deserve or preserve its revered place not Bust in the hierarchy but also in history, passion for reason de.ands the issuance of an extended and extensive resolution that confronts the ra.ifications and repercussions of its assailed 3ecision. %nly then can it offer an illu.ination that any self-respecting student of the la< cla.ors and any adherent of the la< deserves. %ther<ise, it ta9es the ris9 of ree9ing of an obBectionable air of supre.e Budicial arrogance. t is thus i.perative to settle the follo<ing issues and concerns/ /60260r 260 i!8=530!2 Pr01i"0!2 i1 8o!12i2=2io! ll4 pro18ri30" 9ro5 ppoi!2i!@ 260 1=88011or o9 C6i09 J=12i80 R04! 2o S. P=!o =po! 6i1 r02ir050!2 o! M 4 1', 2010 =!2il 260 3 ! 0!"1 2 12A00 !oo! o9 J=!0 %0, 2010

1. n interpreting the subBect constitutional provisions, the 3ecision disregarded established canons of statutory construction. 0ithout explaining the inapplicability of each of the relevant rules, the 3ecision i..ediately placed pre.iu. on the arrange.ent and ordering of provisions, one of the <ea9est tools of construction, to arrive at its conclusion. 2. n reversing Valenzuela, the 3ecision held that the Valenzuela dictu. did not fir.ly rest on ConCo. deliberations, yet it did not offer to cite a .aterial ConCo. deliberation. t instead opted to rely on the .e.ory of :ustice 2loren? Regalado <hich incidentally .entioned only the FCourt of Appeals.F (he 3ecisionDs conclusion .ust rest on the strength of its o<n favorable Conco. deliberation, none of <hich to date has been cited. %. nstead of choosing <hich constitutional provision carves out an exception fro. the other provision, the .ost legally feasible interpretation ;in the li.ited cases of te.porary physical or legal i.possibility of co.pliance, as expounded in .y 3issenting %pinion# is to consider the appoint.ents ban or other substantial obstacle as a te.porary i.possibility <hich excuses or releases the constitutional obligation of the %ffice of the President for the duration of the ban or obstacle. n vie< of the te.porary nature of the circu.stance causing the i.possibility of perfor.ance, the outgoing President is released fro. non-fulfill.ent of the obligation to appoint, and the duty devolves upon the ne< President. (he delay in the fulfill.ent of the obligation beco.es excusable, since the la< cannot exact co.pliance <ith <hat is i.possible. (he 4--day period <ithin <hich to appoint a .e.ber of the Court is thus suspended and the period could only start or resu.e to run <hen the te.porary obstacle disappears ;i.e., after the period of the appoint.ents ban7 <hen there is already a @uoru. in the :BC7 or <hen there is already at least three applicants#. /60260r 260 J="i8i l !" B r Co=!8il i1 o3li@0" 2o 1=35i2 2o 260 Pr01i"0!2 260 16or2li12 o9 !o5i!001 9or 260 po1i2io! o9 C6i09 J=12i80 (or J=12i80 o9 26i1 Co=r2) o! or 309or0 260 o88=rr0!80 o9 260 < 8 !84. 1. (he ruling in the 3ecision that obligates the :BC to sub.it the shortlist to the President on or before the occurrence of the vacancy in the Court runs counter to the Conco. deliberations <hich explain that the 4--day period is allotted for both the no.ination by the :BC and the appoint.ent by the President. n the .ove to increase the period to 4- days, Co..issioner Ro.ulo stated that FJtKhe sense of the Co..ittee is that C- days is a<fully short and that the J:udicial and BarK Council, as <ell as the President, .ay have difficulties <ith that.F 2. (o re@uire the :BC to sub.it to the President a shortlist of no.inees on or before the occurrence of vacancy in the Court leads to preposterous results. t bears reiterating that the re@uire.ent is absurd <hen,inter alia, the vacancy is occasioned by the death of a .e.ber of the Court, in <hich case the :BC could never anticipate the death of a :ustice, and could never sub.it a list to the President on or before the occurrence of vacancy. %. (he express allo<ance in the Constitution of a 4--day period of vacancy in the .e.bership of the Courtrebuts any public policy argu.ent on avoiding a vacuu. of even a single day <ithout a duly appointed Chief :ustice. )oreover, as pointed out in .y 3issenting %pinion, the practice of having an acting Chief :ustice in the interregnu. is provided for by la<, confir.ed by tradition, and settled by Burisprudence to be an internal .atter. (he Resolution of the .aBority, in denying the present )otions for Reconsideration, failed to rebut the foregoing crucial .atters. , therefore, .aintain .y dissent and vote to !RAN( the )otions for Reconsideration of the 3ecision of )arch *+, ,-*- insofar as it holds that the incu.bent President is not constitutionally proscribed fro. appointing the successor of Chief :ustice Reynato $. Puno upon his retire.ent on )ay *+, ,-*- until the ban ends at *,/-- noon of :une 8-, ,-*- and that the :udicial and Bar Council is obliged to sub.it to the President the shortlist of no.inees for the position of Chief :ustice on or before )ay *+, ,-*-. CONC(ITA CARPIO MORALES Associate :ustice

The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING OPINION BRION, J.: (he )otions for Reconsideration

After sifting through the .otions for reconsideration, found that the argu.ents are largely the sa.e argu.ents that <e have passed upon, in one for. or another, in the various petitions. Essentially, the issues boil do<n to Busticiability7 the conflict of constitutional provisions7 the .erits of the cited constitutional deliberations7 and the status and effect of the "alen?uela * ruling. Even the .otion for reconsideration of the Philippine Bar Association ;!.R. No. *4*5,-#, <hose petition did not expressly touch upon in .y $eparate %pinion, basically d<ells on these issues. have addressed .ost, if not all, of these issues and sub.it .y $eparate %pinion , as .y basic response to the .otions for reconsideration, supple.ented by the discussions belo<. As reflected in .y $eparate %pinion ;<hich three other :ustices Boined#,8 the election appoint.ent ban under Article " , $ection *6 of the Constitution should not apply to the appoint.ent of )e.bers of the $upre.e Court <hose period for appoint.ent is separately provided for under Article " , $ection 5;*#. shared this conclusion <ith the CourtDs 3ecision although our reasons differed on so.e points. diverged fully fro. the 3ecision on the @uestion of <hether <e should .aintain or reverse our ruling in "alen?uela. .aintained that it is still good la<7 no reason exists to touch the ruling as its .ain focus L the application of the election ban on the appoint.ent of lo<er court Budges under Article " , $ection 4 of the Constitution L is not even an issue in the present case and <as discussed only because the petitions incorrectly cited the ruling as authority on the issue of the Chief :usticeDs appoint.ent. (he 3ecision proposed to reverse "alen?uela but only secured the support of five ;6# votes, <hile .y $eparate %pinion in support of "alen?uela had four ;5# votes. (hus, on the <hole, the 3ecision did not prevail in reversing "alen?uela, as it only had five ;6# votes in a field of *, participating )e.bers of the Court. "alen?uela should therefore re.ain, as of the filing of this %pinion, as a valid precedent. Acting on the present .otions for reconsideration, Boin the .aBority in denying the .otions <ith respect to the Chief :ustice issue, although <e differ in so.e respects on the reasons supporting the denial. dissent fro. the conclusion that the "alen?uela ruling should be reversed. )y divergence fro. the .aBorityDs reasons and conclusions co.pels .e to <rite this Concurring and 3issenting %pinion. (he Basic Re@uisites M :usticiability %ne .ar9ed difference bet<een the 3ecision and .y $eparate %pinion is our approach on the basic re@uisitesMBusticiability issues. (he 3ecision apparently glossed over this aspect of the case, <hile fully explained <hy the 3e Castro 5 and Peralta6 petitions should be dis.issed outright. n .y vie<, these petitions violated the .ost basic re@uire.ents of their chosen .ediu. for revie< L a petition for certiorari and .anda.us under Rule C6 of the Rules of Court. (he petitions co..only failed to allege that the :udicial and Bar Council ;:BC# perfor.s Budicial or @uasi-Budicial functions, an allegation that the petitions could not really .a9e, since the :BC does not really underta9e these functions and, for this reason, cannot be the subBect of a petition for certiorari7 hence, the petitions should be dis.issed outright. (hey li9e<ise failed to facially sho< any failure or refusal by the :BC to underta9e a constitutional duty to Bustify the issuance of a <rit of .anda.us7 they invo9ed Budicial notice that <e could not give because there <as, and is, no :BC refusal to act.C (hus, the .anda.us aspects of these petitions should have also been dis.issed outright. (he ponencia, unfortunately, failed to fully discuss these legal infir.ities. (he .otions for reconsideration lay .aBor e.phasis on the alleged lac9 of an actual case or controversy that .ade the Chief :usticeDs appoint.ent a Busticiable issue. (hey clai. that the Court cannot exercise the po<er of Budicial revie< <here there is no clash of legal rights and interests or <here this clash is .erely anticipated, although the anticipated event shall co.e <ith certainty. + 0hat the .ovants apparently forgot, focused as they <ere on their respective petitions, is that the present case is not a singlepetition case that rises or falls on the strength of that single petition. (he present case involves various petitions and interventions,E not necessarily pulling to<ards the sa.e direction, although each one is focused on the issue of <hether the election appoint.ent ban under Article " , $ection *6 of the Constitution should apply to the appoint.ent of the next Chief :ustice of the $upre.e Court. A.ong the petitions filed <ere those of (olentino ;!.R. No. *4*85,#, $oriano ;!.R. No. *4*-8,# and )endo?a ;A.). No. *--,-6$C#. (he first t<o are petitions for prohibition under $ection , of Rule C6 of the Rules of Court. 40hile they co..only share this .ediu. of revie<, they differ in their supporting reasons. (he )endo?a petition, on the other hand, is totally different L it is a petition presented as an ad.inistrative .atter ;A.).# in the .anner that the "alen?uela case <as an A.). case. As pointed out in the $eparate %pinion, the Court uses the A.). doc9et designation on .atters relating to its exercise of supervision over all courts and their personnel.*- failed to note then, but .a9e of record no<, that court rules and regulations L the outputs in the CourtDs rule.a9ing function L are also doc9eted as A.). cases. (hat an actual case or controversy involving a clash of rights and interests exists is i..ediately and patently obvious in the (olentino and $oriano petitions. At the ti.e the petitions <ere filed, the :BC had started its six-phase no.ination process that <ould cul.inate in the sub.ission of a list of no.inees to the President of the Philippines for appointive action. (olentino and $oriano L la<yers and citi?ens <ith interest in the strict observance of the election ban L sought to prohibit the :BC fro. continuing <ith this process. (he :BC had started to act, <ithout any prodding fro. the Court, because of its duty to start the no.ination process but

<as ha.pered by the petitions filed and the legal @uestions raised that only the $upre.e Court can settle <ith finality. ** (hus, a clash of interests based on la< existed bet<een the petitioners and the :BC. (o state the obvious, a decision in favor of (olentino or $oriano <ould result in a <rit of prohibition that <ould direct the :BC not to proceed <ith the no.ination process. (he )endo?a petition cited the effect of a co.plete election ban on Budicial appoint.ents ;in vie< of the already high level of vacancies and the bac9log of cases# as basis, and sub.itted the @uestion as an ad.inistrative .atter that the Court, in the exercise of its supervisory authority over the :udiciary and the :BC itself, should act upon. At the sa.e ti.e, it cited the Fpublic discourse and controversyF no< ta9ing place because of the application of the election ban on the appoint.ent of the Chief :ustice, pointing in this regard to the very sa.e reasons .entioned in "alen?uela about the need to resolve the issue and avoid the recurrence of conflict bet<een the Executive and the :udiciary, and the need to Favoid pole.ics concerning the .atter.F *, recogni?ed in the $eparate %pinion that, unli9e in "alen?uela <here an outright defiance of the election ban too9 place, no such obvious triggering event transpired in the )endo?a petition.*8 Rather, the )endo?a petition loo9ed to the supervisory po<er of the Court over Budicial personnel and over the :BC as basis to secure a resolution of the election ban issue. (he :BC, at that ti.e, had indicated its intent to loo9 up to the CourtDs supervisory po<er and role as the final interpreter of the Constitution to guide it in responding to the challenges it confronts.*5 (o .e, this <as Fa point no less critical, fro. the point of vie< of supervision, than the appoint.ent of the t<o Budges during the election ban period in "alen?uela.F *6 n .a9ing this conclusion, pointed out in .y $eparate %pinion the unavoidable surrounding realities evident fro. the confluence of events, na.ely/ ;*# an election to be held on )ay *-, ,-*-7 ;,# the retire.ent of the Chief :ustice on )ay *+, ,-*-7 ;8# the lapse of the ter.s of the elective officials fro. the President to the congress.en on :une 8-, ,-*-7 ;5# the delay before the Congress can organi?e and send its :BC representatives7 and ;6# the expiration of the ter. of a non-elective :BC .e.ber in :uly ,-*-. *C All these L Buxtaposed <ith the CourtDs supervision over the :BC, the latterDs need for guidance, and the existence of an actual controversy on the sa.e issues bedeviling the :BC L in .y vie<, <ere sufficient to save the )endo?a petition fro. being a .ere re@uest for opinion or a petition for declaratory relief that falls under the Burisdiction of the lo<er court. (his recognition is beyond the level of <hat this Court can do in handling a .oot and acade.ic case L usually, one that no longer presents a Budiciable controversy but one that can still be ruled upon at the discretion of the court <hen the constitutional issue is of para.ount public interest and controlling principles are needed to guide the bench, the bar and the public.*+ (o be sure, this approach in recogni?ing <hen a petition is actionable is novel. An overriding reason for this approach can be traced to the nature of the petition, as it rests on the CourtDs supervisory authority and relates to the exercise of the CourtDs ad.inistrative rather than its Budicial functions ;other than these t<o functions, the Court also has its rule.a9ing function under Article " , $ection 6;6# of the Constitution#. $trictly spea9ing, the )endo?a petition calls for directions fro. the Court in the exercise of its po<er of supervision over the :BC,*E not on the basis of the po<er of Budicial revie<.*4 n this sense, it does not need the actual clash of interests of the type that a Budicial adBudication re@uires. All that .ust be sho<n is the active need for supervision to Bustify the CourtDs intervention as supervising authority. 'nder these circu.stances, the CourtDs recognition of the )endo?a petition <as not an undue stretch of its constitutional po<ers. f the recognition is unusual at all, it is so only because of its novelty7 to .y 9no<ledge, this is the first ti.e ever in Philippine Burisprudence that the supervisory authority of the Court over an attached agency has been highlighted in this .anner. Novelty, per se, ho<ever, is not a ground for obBection nor a .ar9 of infir.ity for as long as the novel .ove is founded in la<. n this case, as in the case of the <rit of a.paro and habeas data that <ere then novel and avo<edly activist in character, sufficient legal basis exists to actively invo9e the CourtDs supervisory authority L granted under the Constitution, no less L as basis for action. (o partly @uote the <ording of the Constitution, Article " , $ection E;*# and ;6# provide that FA :udicial and Bar Council is hereby created under the supervision of the $upre.e CourtN t .ay exercise such other functions and duties as the $upre.e Court .ay assign to it.F $upervision, as a legal concept, .ore often than not, is defined in relation <ith the concept of control. ,- n $ocial :ustice $ociety v. Atien?a,,* <e defined FsupervisionF as follo<s/ J$upervisionK .eans overseeing or the po<er or authority of an officer to see that subordinate officers perfor. their duties. f the latter fail or neglect to fulfill the., the for.er .ay ta9e such action or step as prescribed by la< to .a9e the. perfor. their duties. Control, on the other hand, .eans the po<er of an officer to alter or .odify or nullify or set aside <hat a subordinate officer haJsK done in the perfor.ance of his duties and to substitute the Budg.ent of the for.er for that of the latter. 'nder this definition, the Court cannot dictate on the :BC the results of its assigned tas9, i.e., <ho to reco..end or <hat standards to use to deter.ine <ho to reco..end. t cannot even direct the :BC on ho< and <hen to do its duty, but it can, under its po<er of supervision, direct the :BC to Fta9e such action or step as prescribed by la< to .a9e the. perfor. their duties,F if the duties are not being perfor.ed because of :BCDs fault or inaction, or because of extraneous factors affecting perfor.ance. Note in this regard that, constitutionally, the Court can also assign the :BC other functions and duties L a po<er that suggests authority beyond <hat is purely supervisory. 0here the :BC itself is at a loss on ho< to proceed in light of disputed constitutional provisions that re@uire interpretation, ,, the Court is not legally out of line L as the final authority on the interpretation of the Constitution and as the entity constitutionally-tas9ed to supervise the :BC L in exercising its oversight function by clarifying the interpretation of the disputed constitutional provision to guide the :BC. n doing this, the Court is not si.ply rendering a general legal advisory7 it is providing concrete and specific legal

guidance to the :BC in the exercise of its supervisory authority, after the latter has as9ed for assistance in this regard. (hat the Court does this <hile concretely resolving actual controversies ;the (olentino and $oriano petitions# on the sa.e issue i..easurably strengthens the intrinsic correctness of the CourtDs action. t .ay be as9ed/ <hy does the Court have to recogni?e the )endo?a petition <hen it can resolve the conflict bet<een Article " , $ection *6 and Article " , $ection 5;*# through the (olentino and $oriano petitionsO (he ans<er is fairly si.ple and can be read bet<een the lines of the above explanation on the relationship bet<een the Court and the :BC. 2irst, ad.inistrative is different fro. Budicial function and providing guidance to the :BC can only be appropriate in the discharge of the CourtDs ad.inistrative function. $econd, the resolution of the (olentino and $oriano petitions <ill lead to rulings directly related to the underlying facts of these petitions, <ithout clear guidelines to the :BC on the proper para.eters to observe vis-P-vis the constitutional dispute along the lines the :BC needs. n fact, concrete guidelines addressed to the :BC in the resolution of the (olentinoM$oriano petitions .ay even lead to accusations that the CourtDs resolution is broader than is re@uired by the facts of the petitions. (he )endo?a petition, because it pertains directly to the perfor.ance of the :BCDs duty and the CourtDs supervisory authority, allo<s the issuance of precise guidelines that <ill enable the :BC to fully and seasonably co.ply <ith its constitutional .andate. hasten to add that the :BCDs constitutional tas9 is not as si.ple as so.e people thin9 it to be. (he process of preparing and sub.itting a list of no.inees is an arduous and ti.e-consu.ing tas9 that cannot be done overnight. t is a six-step process lined <ith standards re@uiring the :BC to attract the best available candidates, to exa.ine and investigate the., to exhibit transparency in all its actions <hile ensuring that these actions confor. to constitutional and statutory standards ;such as the election ban on appoint.ents#, to sub.it the re@uired list of no.inees on ti.e, and to ensure as <ell that all these acts are politically neutral. %n the ti.e ele.ent, the :BC list for the $upre.e Court has to be sub.itted on or before the vacancy occurs given the 4--day deadline that the appointing President is given in .a9ing the appoint.ent. (he list <ill be sub.itted, not to the President as an outgoing President, nor to the election <inner as an inco.ing President, but to the President of the Philippines <hoever he or she .ay be. f the incu.bent President does not act on the :BC list <ithin the ti.e left in her ter., the sa.e list shall be available to the ne< President for hi. to act upon. n all these, the $upre.e Court bears the burden of overseeing that the :BCDs duty is done, unerringly and <ith ut.ost dispatch7 the Court cannot underta9e this supervision in a .anner consistent <ith the ConstitutionDs expectation fro. the :BC unless it adopts a pro-active stance <ithin the li.its of its supervisory authority. (he 3isputed Provisions (he .ovants present their argu.ents on the .ain issue at several levels. $o.e argue that the disputed constitutional provisions L Article " , $ection *6 and Article " , $ection 5;*# L are clear and spea9 for the.selves on <hat the Constitution covers in banning appoint.ents during the election period.,8 %ne even posits that there is no conflict because both provisions can be given effect <ithout one detracting against the full effectiveness of the other,,5 although the effect is to deny the sitting President the option to appoint in favor of a defer.ent for the inco.ing PresidentDs action. $till others, repeating their original argu.ents, appeal to the principles of interpretation and latin .axi.s to prove their point.,6 n .y discussions in the $eparate %pinion, stated upfront .y vie<s on ho< the disputed provisions interact <ith each other. Read singly and in isolation, they appear clear ;this reading applies the Fplain .eaning ruleF that (olentino advocates in his .otion for reconsideration, as explained belo<#. Arrayed side by side <ith each other and considered in relation <ith the other provisions of the Constitution, particularly its structure and underlying intents, the conflict ho<ever beco.es obvious and unavoidable. $ection *6 on its face disallo<s any appoint.ent in clear negative ter.s ;Fshall not .a9eF# <ithout specifying the appoint.ents covered by the prohibition.,C 2ro. this literal and isolated reading springs the argu.ent that no exception is provided ;except that found in $ection *6 itself# so that even the :udiciary is covered by the ban on appoint.ents. %n the other hand, $ection 5;*# is li9e<ise very clear and categorical in its ter.s/ any vacancy in the Court shall be filled <ithin 4days fro. its occurrence.,+ n the <ay of $ection *6, $ection 5;*# is also clear and categorical and provides no exception7 the appoint.ent refers solely to the )e.bers of the $upre.e Court and does not .ention any period that <ould interrupt, hold or postpone the 4--day re@uire.ent. 2ro. this perspective, the vie< that no conflict exists cannot be seriously .ade, unless <ith the .indset that one provision controls and the other should yield. )any of the petitions in fact advocate this 9ind of reading, so.e of the. openly stating that the po<er of appoint.ent should be reserved for the inco.ing President.,E (he @uestion, ho<ever, is <hether L fro. the vie<point of strict la< and devoid of the e.otionalis. and political partisanship that per.eate the present Philippine political environ.ent L this 9ind of .indset can really be adopted in reading and applying the Constitution. n .y vie<, this 9ind of .indset and the conclusion it inevitably leads to cannot be adopted7 the provisions of the Constitution cannot be read in isolation fro. <hat the <hole contains. (o be exact, the Constitution .ust be read and understood as a <hole, reconciling and har.oni?ing apparently conflicting provisions so that all of the. can be given full force and effect, ,4 unless the Constitution itself expressly states other<ise.8-

Not to be forgotten in reading and understanding the Constitution are the .any established underlying constitutional principles that <e have to observe and respect if <e are to be true to the Constitution. (hese principles L a.ong the. the principles of chec9s and balances and separation of po<ers L are not al<ays expressly stated in the Constitution, but no one <ho believes in and <ho has studied the Constitution can deny that they are there and deserve ut.ost attention, respect, and even priority consideration. n establishing the structures of govern.ent, the ideal that the Constitution see9s to achieve is one of balance a.ong the three great depart.ents of govern.ent L the Executive, the &egislative and the :udiciary, <ith each depart.ent underta9ing its constitutionally-assigned tas9 as a chec9 against the exercise of po<er by the others, <hile all three depart.ents .ove for<ard in <or9ing for the progress of the nation. (hus, the &egislature .a9es the la<s and is supre.e in this regard, in the <ay that the Executive is supre.e in enforcing and ad.inistering the la<, <hile the :udiciary interprets both the Constitution and the la<. Any provision in each of the Articles on these three depart.ents8* that intrudes into the other .ust be closely exa.ined if the provision affects and upsets the desired balance. 'nder the division of po<ers, the President as Chief Executive is given the prerogative of .a9ing appoint.ents, subBect only to the legal @ualification standards, to the chec9s provided by the &egislatureDs Co..ission on Appoint.ents ;<hen applicable# and by the :BC for appoint.ents in the :udiciary, and to the ConstitutionDs o<n li.itations. Conflict co.es in <hen the Constitution laid do<n Article " , $ection *6 li.iting the PresidentDs appointing po<er during the election period. (his li.itation of po<er <ould have been all-enco.passing and <ould, thus, have extended to all govern.ent positions the President can fill, had the Constitution not inserted a provision, also on appoint.ents, in the Article on the :udiciary <ith respect to appoint.ents to the $upre.e Court. (his conflict gives rise to the @uestions/ <hich provision should prevail, or should both be given effectO %r should both provisions yield to a higher concern L the need to .aintain the integrity of our electionsO A holistic reading of the Constitution L a .ust in constitutional interpretation L dictates as a general rule that the tas9s assigned to each depart.ent and their li.itations should be given full effect to fulfill the constitutional purposes under the chec9 and balance principle, unless the Constitution itself expressly indicates its preference for one tas9, concern or standard over the others, 8, or unless this Court, in its role as interpreter of the Constitution, has spo9en on the appropriate interpretation that should be .ade. 88 n considering the interests of the Executive and the :udiciary, a holistic approach starts fro. the pre.ise that the constitutional sche.e is to grant the President the po<er of appoint.ent, subBect to the li.itation provided under Article " , $ection *6. At the sa.e ti.e, the :udiciary is assured, <ithout @ualifications under Article " , $ection 5;*#, of the i..ediate appoint.ent of )e.bers of the $upre.e Court, i.e., <ithin 4- days fro. the occurrence of the vacancy. f both provisions <ould be allo<ed to ta9e effect, as believe they should, the li.itation on the appoint.ent po<er of the President under Article " , $ection *6 should itself be li.ited by the appoint.ent of )e.bers of the Court pursuant to Article " , $ection 5;*#, so that the provision applicable to the :udiciary can be given full effect <ithout detri.ent to the PresidentDs appointing authority. (his har.oni?ation <ill result in restoring to the President the full authority to appoint )e.bers of the $upre.e Court pursuant to the co.bined operation of Article " , $ection *6 and Article " , $ection 5;*#. "ie<ed in this light, there is essentially no conflict, in ter.s of the authority to appoint, bet<een the Executive and :udiciary7 the President <ould effectively be allo<ed to exercise the ExecutiveDs traditional presidential po<er of appoint.ent <hile respecting the :udiciaryDs o<n prerogative. n other <ords, the President retains full po<ers to appoint )e.bers of the Court during the election period, and the :udiciary is assured of a full .e.bership <ithin the ti.e fra.e given. nterestingly, the obBection to the full application of Article " , $ection 5;*# co.es, not fro. the current President, but .ainly fro. petitioners echoing the present presidential candidates, one of <ho. shall soon be the inco.ing President. (hey do not, of course, cite reasons of po<er and the loss of the opportunity to appoint the Chief :ustice7 .any of the petitionersMintervenors oppose the full application of Article " , $ection 5;*# based on the need to .aintain the integrity of the elections through the avoidance of a F.idnight appoint.ent.F (his FintegrityF reason is a given in a de.ocracy and can hardly be opposed on the theoretical plane, as the integrity of the elections .ust indeed prevail in a true de.ocracy. (he state.ent, ho<ever, begs a lot of @uestions, a.ong the. the @uestion of <hether the appoint.ent of a full Court under the ter.s of Article " , $ection 5;*# <ill adversely affect or enhance the integrity of the elections. n .y $eparate %pinion, concluded that the appoint.ent of a )e.ber of the Court even during the election period per se i.plies no adverse effect on the integrity of the election7 a full Court is ideal during this period in light of the CourtDs uni@ue role during elections. .aintain this vie< and fully concur in this regard <ith the .aBority. 3uring the election period, the court is not only the interpreter of the Constitution and the election la<s7 other than the Co..ission on Elections and the lo<er courts to a li.ited extent, the Court is li9e<ise the highest i.partial recourse available to decisively address any proble. or dispute arising fro. the election. t is the leader and the highest court in the :udiciary, the only one of the three depart.ents of govern.ent directly unaffected by the election. (he Court is li9e<ise the entity entrusted by the Constitution, no less, <ith the gravest election-related responsibilities. n particular, it is the sole Budge of all contests in the election of the President and the "ice-President, <ith leadership and participation as <ell in the election tribunals that directly address $enate and 1ouse of Representatives electoral disputes. 0ith this grant of responsibilities, the Constitution itself has spo9en on the trust it reposes on the Court on election .atters. (his reposed trust, to .y .ind, renders acade.ic any @uestion of <hether an

appoint.ent during the election period <ill adversely affect the integrity of the elections L it <ill not, as the .aintenance of a full Court in fact contributes to the enforce.ent of the constitutional sche.e to foster a free and orderly election. n reading the .otions for reconsideration against the bac9drop of the partisan political noise of the co.ing elections, one cannot avoid hearing echoes fro. so.e of the argu.ents that the obBection is related, .ore than anything else, to their lac9 of trust in an appoint.ent to be .ade by the incu.bent President <ho <ill soon be bo<ing out of office. (hey label the incu.bent PresidentDs act as a F.idnight appoint.entF L a ter. that has ac@uired a peBorative .eaning in conte.porary society. As inti.ated in .y $eparate %pinion, the i.putation of distrust can be .ade against any appointing authority, <hether outgoing or inco.ing. (he inco.ing President hi.self <ill be before this Court if an election contest arises7 any President, past or future, <ould also naturally <ish favorable outco.es in legal proble.s that the Court <ould resolve. (hese possibilities and the potential for continuing influence in the Court, ho<ever, cannot be active considerations in resolving the election ban issue as they are, in their present for. and presentation, all speculative. f past record is to be the .easure, the record of past Chief :ustices and of this Court spea9s for itself <ith respect to the :usticesD relationship <ith, and deferral to, the appointing authority in their decisions. 0hat should not be forgotten in exa.ining the records of the Court, fro. the pris. of proble.s an electoral exercise .ay bring, is the CourtDs uni@ue and proven capacity to intervene and diffuse situations that are potentially explosive for the nation. E3$A particularly co.es to .ind in this regard ;although it <as an event that <as not rooted in election proble.s# as it is a perfect exa.ple of the potential for da.age to the nation that the Court can address and has addressed. 0hen acting in this role, a vacancy in the Court is not only a vote less, but a significant contribution less in the CourtDs deliberations and capacity for action, especially if the .issing voice is the voice of the Chief :ustice. Be it re.e.bered that if any E3$A-type situation arises in the co.ing elections, it <ill be co.pounded by the lac9 of leaders because of the lapse of the PresidentDs ter. by :une 8-, ,-*-7 by a possible failure of succession if for so.e reason the election of the ne< leadership beco.es proble.atic7 and by the si.ilar absence of congressional leadership because Congress has not yet convened to organi?e itself.85 n this scenario, only the :udiciary of the three great depart.ents of govern.ent stands unaffected by the election and should at least therefore be co.plete to enable it to discharge its constitutional role to its fullest potential and capacity. (o state the obvious, leaving the :udiciary <ithout any per.anent leader in this scenario .ay i..easurably co.plicate the proble., as all three depart.ents of govern.ent <ill then be leaderless. (o stress <hat .entioned on this point in .y $eparate %pinion, the absence of a Chief :ustice <ill .a9e a lot of difference in the effectiveness of the Court as he or she heads the :udiciary, sits as Chair of the :BC and of the Presidential Electoral (ribunal, presides over i.peach.ent proceedings, and provides the .oral suasion and leadership that only the per.anent .antle of the Chief :ustice can besto<. E3$A is Bust one of the .any lessons fro. the past <hen the <eightiest of issues <ere tac9led and pro.ptly resolved by the Court. 'nseen by the general public in all these <as the leadership that <as there to ensure that the Court <ould act as one, in the spirit of har.ony and stability although divergent in their individual vie<s, as the :ustices individually .a9e their contributions to the collegial result. (o so.e, this leadership .ay only be sy.bolic, as the Court has fully functioned in the past even <ith an inco.plete .e.bership or under an Acting Chief :ustice. But as said before, an inco.plete Court Fis not a <hole $upre.e Court7 it <ill only be a Court <ith *5 .e.bers <ho <ould act and vote on all .atters before it.F (o fully recall <hat have said on this .atter/ (he i.portance of the presence of one )e.ber of the Court can and should never be underesti.ated, particularly on issues that .ay gravely affect the nation. )any a case has been <on or lost on the basis of one vote. %n an issue of the constitutionality of a la<, treaty or statute, a tie vote L <hich is possible in a *5 .e.ber court L .eans that the constitutionality is upheld. (his <as our lesson in sagani Cru? v. 3ENR $ecretary. )ore than the vote, Court deliberation is the core of the decision-.a9ing process and one voice is less is not only a vote less but a contributed opinion, an observation, or a cautionary <ord less for the Court. %ne voice can be a big difference if the .issing voice is that of the Chief :ustice. 0ithout .eaning to de.ean the capability of an Acting Chief :ustice, the ascendancy in the Court of a per.anent sitting Chief :ustice cannot be e@ualed. 1e is the first a.ong e@uals L a pri.us inter pares L <ho sets the tone for the Court and the :udiciary, and <ho is loo9ed up to on all .atters, <hether ad.inistrative or Budicial. (o the <orld outside the :udiciary, he is the personification of the Court and the <hole :udiciary. And this is not surprising since, as Chief :ustice, he not only chairs the Court en banc, but chairs as <ell the Presidential Electoral (ribunal that sits in Budg.ent over election disputes affecting the President and the "icePresident. %utside of his i..ediate Court duties, he sits as Chair of the :udicial and Bar Council, the Philippine :udicial Acade.y and, by constitutional co..and, presides over the i.peach.ent of the President. (o be sure, the Acting Chief :ustice .ay be the ablest, but he is not the Chief :ustice <ithout the .antle and per.anent title of the %ffice, and even his presence as Acting Chief :ustice leaves the Court <ith one .e.ber less. $adly, this .e.ber is the Chief :ustice7 even <ith an Acting Chief :ustice, the :udiciary and the Court re.ains headless. 86 !iven these vie<s, see no point in re-discussing the finer points of technical interpretation and their supporting latin .axi.s that have addressed in .y $eparate %pinion and no< feel need no further elaboration7 .axi.s can be found to serve a pleaderDs every need and in any case are the last interpretative tools in constitutional interpretation. Nor do see any point in discussing argu.ents based on the intent of the fra.ers of the Constitution no< cited by the parties in the contexts that <ould serve their o<n ends. As

.ay be evident in these discussions, other than the texts of the disputed provisions, prefer to exa.ine their purposes and the conse@uences of their application, understood <ithin the context of de.ocratic values. Past precedents are e@ually invaluable for the lead, order, and stability they contribute, but only if they are in point, certain, and still alive to current realities, <hile the history of provisions, including the intents behind the., are pri.arily i.portant to ascertain the purposes the provisions serve. 2ro. these perspectives and <ithout denigrating the fra.ersD historical contributions, say that it is the Constitution that no< pri.arily spea9s to us in this case and <hat <e hear are its direct <ords, not .erely the recorded isolated debates reflecting the personal intents of the constitutional co..issioners as cited by the parties to fit their respective theories. (he voice spea9ing the <ords of the Constitution is our best guide, as these <ords <ill unalterably be there for us to read in the context of their purposes and the nationDs needs and circu.stances. (his Concurring and 3issenting %pinion hears and listens to that voice. (he "alen?uela 3ecision (he ponenciaDs ruling reversing "alen?uela, in .y vie<, is out of place in the present case, since at issue here is the appoint.ent of the Chief :ustice during the period of the election ban, not the appoint.ent of lo<er court Budges that "alen?uela resolved. (o be perfectly clear, the conflict in the constitutional provisions is not confined to Article " , $ection *6 and Article " , $ection 5;*# <ith respect to the appoint.ent of )e.bers of the $upre.e Court7 even before the "alen?uela ruling, the conflict already existed bet<een Article " , $ection *6 and Article " , $ection 4 L the provision on the appoint.ent of the Bustices and Budges of courts lo<er than the $upre.e Court. After this CourtDs ruling in "alen?uela, no a.ount of hairsplitting can result in the conclusion that Article " , $ection *6 applied the election ban over the <hole :udiciary, including the $upre.e Court, as the facts and the fallo of "alen?uela plainly spo9e of the obBectionable appoint.ent of t<o Regional (rial Court Budges. (o reiterate, "alen?uela only resolved the conflict bet<een Article " , $ection *6 and appoint.ents to the :udiciary under Article " , $ection 4. f "alen?uela did pro.inently figure at all in the present case, the pro.inence can be attributed to the petitionersD .ista9en reading that this case is pri.ary authority for the dictu. that Article " , $ection *6 co.pletely bans all appoint.ents to the :udiciary, including appoint.ents to the $upre.e Court, during the election period up to the end of the incu.bent PresidentDs ter.. n reality, this .ista9en reading is an obiter dictu. in "alen?uela, and hence, cannot be cited for its pri.ary precedential value. (his legal situation still holds true as "alen?uela <as not doctrinally reversed as its proposed reversal <as supported only by five ;6# out of the *, participating )e.bers of the Court. n other <ords, this ruling on ho< Article " , $ection *6 is to be interpreted in relation <ith Article " , $ection 4, should continue to stand unless other<ise expressly reversed by this Court. But separately fro. the .ista9en use of an obiter ruling as pri.ary authority, believe that should sound the alar. bell about the "alen?uela ruling in light of a recent vacancy in the position of Presiding :ustice of the $andiganbayan resulting fro. Presiding :ustice Norberto !eralde?Ds death soon after <e issued the decision in the present case. Reversing the "alen?uela ruling no<, in the absence of a properly filed case addressing an appoint.ent at this ti.e to the $andiganbayan or to any other vacancy in the lo<er courts, <ill be an irregular ruling of the first .agnitude by this Court, as it <ill effectively be a shortcut that lifts the election ban on appoint.ents to the lo<er courts <ithout the benefit of a case <hose facts and argu.ents <ould directly confront the continued validity of the "alen?uela ruling. (his is especially so after <e have placed the Court on notice that a reversal of "alen?uela is uncalled for because its ruling is not the litigated issue in this case. n any case, let .e repeat <hat stressed in .y $eparate %pinion about "alen?uela <hich rests on the reasoning that the evils $ection *6 see9s to re.edy L vote buying, .idnight appoint.ents and partisan reasons to influence the elections L exist, thus Bustifying an election appoint.ent ban. n particular, the F.idnight appoint.entF Bustification, <hile fully applicable to the .ore nu.erous vacancies at the lo<er echelons of the :udiciary ;<ith an alleged current lo<er court vacancy level of 68+ or a ,5.6Q vacancy rate#, should not apply to the $upre.e Court <hich has only a total of *6 positions that are not even vacated at the sa.e ti.e. (he .ost nu.ber of vacancies for any one year occurred only last year ;,--4# <hen seven ;+# positions <ere vacated by retire.ent, but this vacancy rate is not expected to be replicated at any ti.e <ithin the next decade. (hus F.idnight appoint.entsF to the extent that they <ere understood in Aytona8C <ill not occur in the vacancies of this Court as no.inations to its vacancies are all processed through the :BC under the publicDs close scrutiny. As already discussed above, the institutional integrity of the Court is hardly an issue. f at all, only obBections personal to the individual )e.bers of the Court or against the individual applicants can be .ade, but these are .atters addressed in the first place by the :BC before no.inees are sub.itted. (here, too, are specific reasons, li9e<ise discussed above, explaining <hy the election ban should not apply to the $upre.e Court. (hese exe.pting reasons, of course, have yet to be sho<n to apply to the lo<er courts. (hus, on the <hole, the reasons Bustifying the election ban in "alen?uela still obtain in so far as the lo<er courts are concerned, and have yet to be proven other<ise in a properly filed case. 'ntil then, "alen?uela, except to the extent that it .entioned $ection 5;*#, should re.ain an authoritative ruling of this Court. C%NC&'$ %N n light of these considerations, a <rit of prohibition cannot issue to prevent the :BC fro. perfor.ing its principal function, under the Constitution, of reco..ending no.inees for the position of Chief :ustice. (hus, vote to deny <ith finality the (olentino and $oriano .otions for reconsideration.

(he other .otions for reconsideration in so far as they challenge the conclusion that the President can appoint the Chief :ustice even during the election period are li9e<ise denied <ith finality for lac9 of .erit, but are granted in so far as they support the continued validity of the ruling of this Court in n Re/ "alen?uela and "allarta, A.). No. 4E-6--*-$C, Nove.ber 4, *44E. )y opinion on the )endo?a petition stands. ARTURO D. BRION Associate :ustice

)oo2!o201
*

A.). No. 4E-6--*-$C, Nove.ber 4, *44E, ,4E $CRA 5-E. (his A.). involves the constitutional validity of the appoint.ent of t<o ;,# R(C :udges on )arch 8-, *44E L a date that falls <ithin the supposed ban under $ection *6, Article " of the Constitution. 0e nullified the appoint.ents.
,

!.R. No. *4*--, and co.panion cases, pro.ulgated on )arch *+, ,-*-. :ustices 3iosdado ). Peralta, )ariano C. 3el Castillo and :ose Catral )endo?a. !.R. No. *4*--,, Petition for Certiorari and )anda.us. !.R. No. *4**54, Petition for Certiorari and )anda.us.

(he :BC reiterates its position in its Co..ent ;dated April *,, ,-*-# on the .otions for reconsideration that it is still acting on the preparation of the list of no.inees and is set to intervie< the no.inees.
+

$ee, for instance, the .otion for reconsideration of intervenor Alfonso (an, :r. (he doc9eted petitions <ere seven7 the petitions-in-intervention <ere ten.

A prohibition petition see9s to stop the proceedings of a tribunal, corporation, board, officer or person exercising Budicial, @uasi-Budicial or .inisterial functions if any of its act is <ithout or in excess of Burisdiction or <ith grave abuse of discretion a.ounting to lac9 or excess of Burisdiction.
*-

$eparate %pinion, p. *C. (he :BC position states/ xxxx &i9e<ise, the :BC has yet to ta9e a position on <hen to sub.it the shortlist to the proper appointing authority, in light of $ection 5;*#, Article " of the Constitution, <hich provides that vacancy in the $upre.e Court shall be filled <ithin ninety ;4-# days fro. the occurrence thereof, $ection *6, Article " of the Constitution concerning the ban on Presidential appoint.ents Ft<o ;,# .onths i..ediately before the next presidential elections and up to the end of his ter.F and $ection ,C*;g#, Article RR of the %.nibus Election Code of the Philippines. *,. $ince the 1onorable $upre.e Court is the final interpreter of the Constitution, the :BC <ill be guided by its decision in these consolidated Petitions and Ad.inistrative )atter. JE.phasis supplied.K

**

*,

)endo?a Petition, pp. 6-C. $eparate %pinion, pp. *C-*+. $upra note **.

*8

*5

*6

d. at *+. $eparate %pinion, pp. *4-,,/ A 9ir12 r0 li24 is that the :BC cannot, on its o<n due to lac9 of the proper authority, deter.ine the appropriate course of action to ta9e under the Constitution. ts principal function is to reco..end appointees to the :udiciary and it has no authority to interpret constitutional provisions, even those affecting its principal function7 the authority to underta9e constitutional interpretation belongs to the courts alone. A 108o!" r0 li24 is that the disputed constitutional provisions do not stand alone and cannot be read independently of one another7 the Constitution and its various provisions have to be read and interpreted as one sea.less <hole, giving sufficient e.phasis to every aspect in accordance <ith the hierarchy of our constitutional values. (he disputed provisions should be read together and, as reflections of the <ill of the people, should be given effect to the extent that they should be reconciled. (he 26ir" r0 li24, closely related to the second, is that in resolving the coverage of the election ban vis-P-vis the appoint.ent of the Chief :ustice and the )e.bers of the Court, provisions of the Constitution other than the disputed provisions .ust be ta9en into account. n considering <hen and ho< to act, the :BC has to consider that/ *. (he President has a ter. of six years <hich 30@i!1 2 !oo! o9 J=!0 %0 follo<ing the election, <hich i.plies that the outgoing President re.ains President up to that ti.e. ;$ection 5, Article " #. (he President assu.es office at the beginning of his or her ter., <ith provision for the situations <here the President fails to @ualify or is unavailable at the beginning of his ter. ;$ection +, Article " #. ,. (he $enators and the Congress.en begin their respective ter.s also at 5i"" 4 o9 J=!0 %0 ;$ections 5 and +, Article " #. (he Congress convenes on the ,26 Mo!" 4 o9 J=l4 for its regular session, but the President .ay call a special session at any ti.e. ;$ection *6, Article " # 8. (he "alen?uela case cited as authority for the position that the election ban provision applies to the <hole :udiciary, only decided the issue <ith respect to lo<er court Budges, specifically, those covered by $ection 4, Article " of the Constitution. Any reference to the filling up of vacancies in the $upre.e Court pursuant to $ection 5;*#, Article " constitutes obiter dictu. as this issue <as not directly in issue and <as not ruled upon. (hese provisions and interpretation of the "alen?uela ruling L <hen read together <ith disputed provisions, related <ith one another, and considered <ith the )ay *+, ,-*- retire.ent of the current Chief :ustice L bring into focus certain unavoidable realities, as follo<s/ *. f the election ban <ould apply fully to the $upre.e Court, the incu.bent President cannot appoint a )e.ber of the Court beginning )arch *-, ,-*-, all the <ay up to :une 8-, ,-*-. ,. (he retire.ent of the incu.bent Chief :ustice L )ay *+, ,-*- L falls <ithin the period of the election ban. ; n an extre.e exa.ple <here the retire.ent of a )e.ber of the Court falls on or very close to the day the election ban starts, the %ffice of the $olicitor !eneral calculates in its Co..ent that the <hole 4- days given to the President to .a9e appoint.ent <ould be covered by the election ban.# 8. Beginning )ay *+, ,-*-, the Chief :ustice position <ould be vacant, giving rise to the @uestion of <hether an Acting Chief :ustice can act in his place. 0hile this is essentially a $upre.e Court concern, the Chief :ustice is the ex officio Chair of the :BC7 hence it .ust be concerned and be properly guided. 5. (he appoint.ent of the ne< Chief :ustice has to be .ade <ithin 4- days fro. the ti.e the vacancy occurs, <hich translates to a deadline of August *6, ,-*-. 6. (he deadline for the appoint.ent is fixed ;as it is not rec9oned fro. the date of sub.ission of the :BC list, as in the lo<er courts# <hich .eans that the :BC ideally <ill have to .a9e its list available at the start of the 4--day period so that its process <ill not eat up the 4--day period granted the President.

*C

C. After noon of :une 8-, ,-*-, the :BC representation fro. Congress <ould be vacant7 the current representativesD .andates to act for their principals extend only to the end of their present ter.s7 thus, the :BC shall be operating at that point at less than its full .e.bership. +. Congress <ill not convene until the 5th )onday of :uly, ,-*-, but <ould still need to organi?e before the t<o 1ouses of Congress can send their representatives to the :BC L a process .ay extend <ell into August, ,-*-. E. By :uly 6, ,-*-, one regular .e.ber of the :BC <ould vacate his post. 2illing up this vacancy re@uires a presidential appoint.ent and the concurrence of the Co..ission on Appoint.ents. 4. &ast but not the least, the prohibition in $ection *6, Article " is that Fa President or Acting President shall not .a9e appoint.ents.F (his prohibition is expressly addressed to the President and covers the act of appoint.ent7 the prohibition is not against the :BC in the perfor.ance of its function of Freco..ending appointees to the :udiciaryF L an act that is one step a<ay fro. the act of .a9ing appoint.ents.
*+

(he Province of North Cotabato v. !overn.ent of the Republic of the Philippines Peace Panel Ancestral 3o.ain, !.R. Nos. *E864*, *E8+4*, *E8+6,, *E8E48, *E846* and *E84C,, %ctober *5, ,--E.
*E

By virtue of its po<er of ad.inistrative supervision, the $upre.e Court oversees the BudgesD and court personnelDs co.pliance <ith the la<s, rules and regulations. t .ay ta9e the proper ad.inistrative action against the. if they co..it any violation. $ee A.pong v. C$C, !.R. No. *-+4*-, August ,C, ,--E, 6C8 $CRA ,48. (he Constitution separately provides for the $upre.e CourtDs supervision over the :BC. $ee Article " , $ection E of the C%N$( ('( %N.
*4

:udicial Revie< is the po<er of the courts to test the validity of executive and legislative acts for their confor.ity <ith the Constitution, !arcia v. Executive $ecretary, !.R. No. *6+6E5, April ,, ,--4.
,-

Control is the po<er of an officer to alter or .odify or nullify or set aside <hat a subordinate officer had done in the perfor.ance of his duties and to substitute the Budg.ent of the for.er for that of the latter. t is distinguished fro. supervision in that the latter .eans overseeing, or the po<er or authority of an officer to see that subordinate officers perfor. their duties, and if the latter fail or neglect to fulfill the., then the for.er .ay ta9e such action or steps as prescribed by la< to .a9e the. perfor. these duties. Nachura, :., %utline Revie<er in Political &a<, ,--C ed., p. ,+C.
,*

!.R. No. *6C-6,, 2ebruary *8, ,--E, 656 $CRA 4,. $upra notes ** and *5.

,,

,8

Philippine Bar Association ;PBA#, 0o.en (rial &a<yers %rgani?ation of the Philippines ;0(&%P#, Atty. A.ador =. (olentino, Atty. Roland B. nting, Peter rving Corvera and Alfonso ". (an, :r.
,5

$ee PBADs )otion for Reconsideration.

,6

$ee the )otions for Reconsideration for PBA, 0(&%P, Atty. A.ador =. (olentino, Atty. Roland B. nting, Peter rving Corvera and Alfonso ". (an, :r.
,C

C%N$( ('( %N, Article " , $ection *6/ (<o .onths i..ediately before the next presidential elections and up to the end of his ter., a President or Acting President shall not .a9e appoint.ents, except te.porary appoint.ents to executive positions <hen continued vacancies therein <ill preBudice public service or endanger public safety.

,+

C%N$( ('( %N, Article " , $ection 5;*#/ ;*# (he $upre.e Court shall be co.posed of a Chief :ustice and fourteen Associate :ustices. t .ay sit en banc or, in its discretion, in divisions of three, five, or seven )e.bers. Any vacancy shall be filled <ithin ninety days fro. the occurrence thereof. xxxx

,E

$ee Petition on ntervention of 0(&%P, as cited in the decision in the above-captioned cases7 see also/ PBADs .otion for reconsideration.
,4

2rancisco v. 1ouse of Representatives, !.R. No. *C-,C*, Nove.ber *-, ,--8, 5*6 $CRA 55, citing Civil &iberties 'nion v. Executive $ecretary, *45 $CRA 8*+ ;*445#7 Peralta v. Co..ission on Elections, !.R. No. 5+++*, )arch **, *4+E, E, $CRA 8- ;*4+E#7 Ang-Angco v. Castillo, !.R. No. *+*C4, Nove.ber 8-, *4C8, 4 $CRA C*4 ;*4C8#.
8-

)acalintal v. Co..ission on Elections, !.R. No. *6+-*8, :uly *-, ,--8, 8*- $CRA C*5, citing Chiongbian v. 3e &eon, E, Phil ++* ;*454#.
8*

Article " for the &egislature, Article " for the Executive, and Article "

for the :udiciary.

8,

$ee )atibag v. Benipayo, !.R. No. *54-8C, April ,, ,--,, 8E- $CRA 547 <here the court resolved the clash bet<een the po<er of the President to extend ad interi. appoint.ents and the po<er of the Co..ission on Appoint.ents to confir. presidential appoint.ents.
88

bid. $upra note *8. $eparate %pinion, p. 8,. Aytona v. Castillo, !.R. No. *48*6, :anuary *4, *4C,, 5 $CRA *.

85

86

8C