BERSAMIN CASES 2010

G. R. No. 191002, March 17, 2010

ARTURO M. DE CASTRO, PETITIONER, VS. JUDICIAL AND BAR COUNCIL (JBC)

AND PRESIDENT GLORIA MACAPAGAL - ARROYO, RESPONDENTS.

[G.R. No. 191032 ]

JAIME N. SORIANO, PETITIONER, VS. JUDICIAL AND BAR COUNCIL (JBC),

RESPONDENT.

[G.R. No. 191057]

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), PETITIONER, VS.

JUDICIAL AND BAR COUNCIL (JBC), RESPONDENT.

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

IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO

APPOINTMENTS TO THE JUDICIARY, ESTELITO P. MENDOZA, PETITIONER,

[G.R. No. 191149]

JOHN G. PERALTA, PETITIONER, VS. JUDICIAL AND BAR COUNCIL (JBC).

RESPONDENT.

PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.;

NATIONAL UNION OF PEOPLE'S LAWYERS; MARLOU B. UBANO; INTEGRATED
BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER, REPRESENTED BY ITS
IMMEDIATE PAST PRESIDENT, ATTY. ISRAELITO P. TORREON, AND THE LATTER
IN HIS OWN PERSONAL CAPACITY AS A MEMBER OF THE PHILIPPINE BAR;
MITCHELL JOHN L. BOISER; BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN
DR. CAROLINA P. ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES,
JR.; CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF
GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE;
KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL
GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN NG
SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN LEONARD
RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE OF FILIPINO
STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY LACUANAN RIDON;
NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP) CHAIRMAN
EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP)
CHAIRMAN VIJAE ALQUISOLA; AND STUDENT CHRISTIAN MOVEMENT OF THE
PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA; WALDEN
F. BELLO AND LORETTA ANN P. ROSALES; WOMEN TRIAL LAWYERS
ORGANIZATION OF THE PHILIPPINES, REPRESENTED BY YOLANDA
QUISUMBING- JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA
GANDIONCO-OLEDAN; MA. VERENA KASILAG-VILLANUEVA; MARILYN STA.
ROMANA; LEONILA DE JESUS; AND GUINEVERE DE LEON. INTERVENORS.

[G.R. No. 191342]

ATTY. AMADOR Z. TOLENTINO, JR., (IBP GOVERNOR-SOUTHERN LUZON), AND

ATTY. ROLAND B. INTING (IBP GOVERNOR-EASTERN VISAYAS), PETITIONERS,
VS. JUDICIAL AND BAR COUNCIL (JBC), RESPONDENT.

[G.R. No. 191420]

PHILIPPINE BAR ASSOCIATION, INC., PETITIONER, VS. JUDICIAL AND BAR

COUNCIL AND HER EXCELLENCY GLORIA MACAPAGAL-ARROYO,
RESPONDENTS.

DECISION

BERSAMIN, J.:

The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs
just days after the coming presidential elections on May 10, 2010. Even before the
event actually happens, it is giving rise to many legal dilemmas. May the incumbent
President appoint his successor, considering that Section 15, Article VII (Executive
Department) of the Constitution prohibits the President or Acting President from making
appointments within two months immediately before the next presidential elections and
up to the end of his term, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public safety?
What is the relevance of Section 4 (1), Article VIII (Judicial Department) of the
Constitution, which provides that any vacancy in the Supreme Court shall be filled within
90 days from the occurrence thereof, to the matter of the appointment of his successor?
May the Judicial and Bar Council (JBC) resume the process of screening the candidates
nominated or being considered to succeed Chief Justice Puno, and submit the list of
nominees to the incumbent President even during the period of the prohibition under
Section 15, Article VII? Does mandamus lie to compel the submission of the shortlist of
nominees by the JBC?

Precs of the Consolidated Cases

Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R. No.
191002[1]and G.R. No. 191149[2] as special civil actions for certiorari and mandamus,
praying that the JBC be compelled to submit to the incumbent President the list of at
least three nominees for the position of the next Chief Justice.

In G.R. No. 191032,[3] Jaime N. Soriano, via his petition for prohibition, proposes to
prevent the JBC from conducting its search, selection and nomination proceedings for
the position of Chief Justice.

In G.R. No. 191057, a special civil action for mandamus,[4] the Philippine Constitution
Association (PHILCONSA) wants the JBC to submit its list of nominees for the position
of Chief Justice to be vacated by Chief Justice Puno upon his retirement on May 17,
2010, because the incumbent President is not covered by the prohibition that applies
only to appointments in the Executive Department.

In Administrative Matter No. 10-2-5-SC,[5] petitioner Estelito M. Mendoza, a former

Solicitor General, seeks a ruling from the Court for the guidance of the JBC on whether
Section 15, Article VII applies to appointments to the Judiciary.

In G.R. No. 191342,[6] which the Court consolidated on March 9, 2010 with the petitions
earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated Bar of
the Philippines (IBP) Governors for Southern Luzon and Eastern Visayas, respectively,
want to enjoin and restrain the JBC from submitting a list of nominees for the position of
Chief Justice to the President for appointment during the period provided for in Section
15, Article VII.

All the petitions now before the Court pose as the principal legal question whether the
incumbent President can appoint the successor of Chief Justice Puno upon his
retirement. That question is undoubtedly impressed with transcendental importance to
the Nation, because the appointment of the Chief Justice is any President's most
important appointment.

A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon.

Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court
of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively (Valenzuela),
[7]
by which the Court held that Section 15, Article VII prohibited the exercise by the
President of the power to appoint to judicial positions during the period therein fixed.

In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue
expressed by legal luminaries - one side holds that the incumbent President is
prohibited from making appointments within two months immediately before the coming
presidential elections and until the end of her term of office as President on June 30,
2010, while the other insists that the prohibition applies only to appointments to
executive positions that may influence the election and, anyway, paramount national
interest justifies the appointment of a Chief Justice during the election ban - has
impelled the JBC to defer the decision to whom to send its list of at least three
nominees, whether to the incumbent President or to her successor. [8] He opines that the
JBC is thereby arrogating unto itself "the judicial function that is not conferred upon it by
the Constitution," which has limited it to the task of recommending appointees to the
Judiciary, but has not empowered it to "finally resolve constitutional questions, which is
the power vested only in the Supreme Court under the Constitution." As such, he
contends that the JBC acted with grave abuse of discretion in deferring the submission
of the list of nominees to the President; and that a "final and definitive resolution of the
constitutional questions raised above would diffuse (sic) the tension in the legal
community that would go a long way to keep and maintain stability in the judiciary and
the political system."[9]

In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse of
discretion amounting to lack or excess of its jurisdiction when it resolved unanimously
on January 18, 2010 to open the search, nomination, and selection process for the
position of Chief Justice to succeed Chief Justice Puno, because the appointing
authority for the position of Chief Justice is the Supreme Court itself, the President's
authority being limited to the appointment of the Members of the Supreme Court.
Hence, the JBC should not intervene in the process, unless a nominee is not yet a
Member of the Supreme Court.[10]

For its part, PHILCONSA observes in its petition in G.R. No. 191057 that "unorthodox
and exceptional circumstances spawned by the discordant interpretations, due perhaps
to a perfunctory understanding, of Sec. 15, Art. VII in relation to Secs. 4(1), 8(5) and 9,
Art. VIII of the Constitution" have bred "a frenzied inflammatory legal debate on the
constitutional provisions mentioned that has divided the bench and the bar and the
general public as well, because of its dimensional impact to the nation and the people,"
thereby fashioning "transcendental questions or issues affecting the JBC's proper
exercise of its "principal function of recommending appointees to the Judiciary" by
submitting only to the President (not to the next President) "a list of at least three
nominees prepared by the Judicial and Bar Council for every vacancy" from which the
members of the Supreme Court and judges of the lower courts may be
appointed."[11] PHILCONSA further believes and submits that now is the time to revisit
and review Valenzuela, the "strange and exotic Decision of the Court en banc." [12]

Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC "to
immediately transmit to the President, within a reasonable time, its nomination list for
the position of chief justice upon the mandatory retirement of Chief Justice Reynato S.
Puno, in compliance with its mandated duty under the Constitution" in the event that the
Court resolves that the President can appoint a Chief Justice even during the election
ban under Section 15, Article VII of the Constitution. [13]

The petitioners in G.R. No. 191342 insist that there is an actual controversy, considering
that the "JBC has initiated the process of receiving applications for the position of Chief
Justice and has in fact begun the evaluation process for the applications to the
position," and "is perilously near completing the nomination process and coming up with
a list of nominees for submission to the President, entering into the period of the ban on
midnight appointments on March 10, 2010," which "only highlights the pressing and
compelling need for a writ of prohibition to enjoin such alleged ministerial function of
submitting the list, especially if it will be cone within the period of the ban on midnight
appointments."[14]

Antecedents
These cases trace their genesis to the controversy that has arisen from the forthcoming
compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after the
presidential election. Under Section 4(1), in relation to Section 9, Article
VIII, that "vacancy shall be filled within ninety days from the occurrence thereof" from a
"list of at least three nominees prepared by the Judicial and Bar Council for every
vacancy."

On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the

JBC, addressed a letter to the JBC, requesting that the process for nominations to the
office of the Chief Justice be commenced immediately.

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

The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the
process of filling up the position of Chief Justice to be vacated on May 17, 2010 upon
the retirement of the incumbent Chief Justice Honorable Reynato S. Puno.

It will publish the opening of the position for applications or recommendations;

deliberate on the list of candidates; publish the names of candidates; accept comments
on or opposition to the applications; conduct public interviews of candidates; and
prepare the shortlist of candidates.

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

18 January 2010.

(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council

As a result, the JBC opened the position of Chief Justice for application or
recommendation, and published for that purpose its announcement dated January 20,
2010,[16] viz:

The Judicial and Bar Council (JBC) announces the opening for application or
recommendation, of the position of CHIEF JUSTICE OF THE SUPREME COURT,
which will be vacated on 17 May 2010 upon the retirement of the incumbent Chief
Justice, HON. REYNATO S. PUNO.

Applications or recommendations for this position must be submitted not later than 4
February 2010 (Thursday) to the JBC Secretariat xxx:

The announcement was published on January 20, 2010 in the Philippine Daily
Inquirer and The Philippine Star.[17]

Conformably with its existing practice, the JBC "automatically considered" for the
position of Chief Justice the five most senior of the Associate Justices of the Court,
namely: Associate Justice 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 two declined their
nomination through letters dated January 18, 2010 and January 25, 2010, respectively.
[18]

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

The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to
meet the standards set by the JBC rules); and Special Prosecutor Dennis Villa-Ignacio
of the Office of the Ombudsman (due to cases pending in the Office of the
Ombudsman).[21]

In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of
announcing the names of the following candidates to invite the public to file their sworn
complaint, written report, or opposition, if any, not later than February 22, 2010, to wit:
Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales,
Associate Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice
Sandoval. The announcement came out in the Philippine Daily Inquirer and The
Philippine Star issues of February 13, 2010.[22]

Issues

Although it has already begun the process for the filling of the position of Chief Justice
Puno in accordance with its rules, the JBC is not yet decided on when to submit to the
President its list of nominees for the position due to the controversy now before us
being yet unresolved. In the meanwhile, time is marching in quick step towards May 17,
2010 when the vacancy occurs upon the retirement of Chief Justice Puno.
The actions of the JBC have sparked a vigorous debate not only among legal
luminaries, but also among non-legal quarters, and brought out highly disparate
opinions on whether the incumbent President can appoint the next Chief Justice or not.
Petitioner Mendoza notes that in Valenzuela, which involved the appointments of two
judges of the Regional Trial Court, the Court addressed this issue now before us as an
administrative matter "to avoid any possible polemics concerning the matter," but he
opines that the polemics leading to Valenzuela "would be miniscule [sic] compared to
the "polemics" that have now erupted in regard to the current controversy," and that
unless "put to a halt, and this may only be achieved by a ruling from the Court, the
integrity of the process and the credibility of whoever is appointed to the position of
Chief Justice, may irreparably be impaired." [23]

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

G.R. No. 191002

a. Does the JBC have the power and authority to resolve the constitutional question
of whether the incumbent President can appoint a Chief Justice during the
election ban period?

b. Does the incumbent President have the power and authority to appoint during the
election ban the successor of Chief Justice Puno when he vacates the position of
Chief Justice on his retirement on May 17, 2010?

G.R. No. 191032

a. Is the power to appoint the Chief Justice vested in the Supreme Court en banc?

G.R. No. 191057

a. Is the constitutional prohibition against appointment under Section 15, Article VII
of the Constitution applicable only to positions in the Executive Department?

b. Assuming that the prohibition under Section 15, Article VII of the Constitution also
applies to members of the Judiciary, may such appointments be excepted
because they are impressed with public interest or are demanded by the
exigencies of public service, thereby justifying these appointments during the
period of prohibition?

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

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

a. Does Section 15, Article VII of the Constitution apply to appointments to positions
in the Judiciary under Section 9, Article VIII of the Constitution?

b. May President Gloria Macapagal-Arroyo make appointments to the Judiciary

after March 10, 2010, including that for the position of Chief Justice after Chief
Justice Puno retires on May 17, 2010?

G.R. No. 191149

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

G.R. No. 191342

a. Does the JBC have the authority to submit the list of nominees to the incumbent
President without committing a grave violation of the Constitution and
jurisprudence prohibiting the incumbent President from making midnight
appointments two months immediately preceding the next presidential elections
until the end of her term?

b. Is any act performed by the JBC, including the vetting of the candidates for the
position of Chief Justice, constitutionally invalid in view of the JBC's illegal
composition allowing each member from the Senate and the House of
Representatives to have one vote each?

On February 16, 2010, the Court directed the JBC and the Office of the Solicitor
General (OSG) to comment on the consolidated petitions, except that filed in G.R. No.
191342.

On February 26, 2010, the JBC submitted its comment, reporting therein that the next
stage of the process for the selection of the nominees for the position of Chief Justice
would be the public interview of the candidates and the preparation of the short list of
candidates, "including the interview of the constitutional experts, as may be
needed."[24] It stated:[25]

Likewise, the JBC has yet to take a position on when to submit the shortlist to the
proper appointing authority, in light of Section 4 (1), Article VIII of the
Constitution, which provides that vacancy in the Supreme Court shall be filled
within ninety (90) days from the occurrence thereof, Section 15, Article VII of the
Constitution concerning the ban on Presidential appointments "two (2) months
immediately before the next presidential elections and up to the end of his term"
and Section 261 (g), Article XXII of the Omnibus Election Code of the Philippines.

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

On February 26, 2010, the OSG also submitted its comment, essentially stating that the
incumbent President can appoint the successor of Chief Justice Puno upon his
retirement by May 17, 2010.

The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from
performing its principal function under the Constitution to recommend appointees in the
Judiciary; (b) the JBC's function to recommend is a "continuing process," which does
not begin with each vacancy or end with each nomination, because the goal is "to
submit the list of nominees to Malacaang on the very day the vacancy arises"; [26] the
JBC was thus acting within its jurisdiction when it commenced and set in motion the
process of selecting the nominees to be submitted to the President for the position of
Chief Justice to be vacated by Chief Justice Puno; [27] (c) petitioner Soriano's theory that
it is the Supreme Court, not the President, who has the power to appoint the Chief
Justice, is incorrect, and proceeds from his misinterpretation of the phrase "members of
the Supreme Court" found in Section 9, Article VIII of the Constitution as referring only
to the Associate Justices, to the exclusion of the Chief Justice; [28] (d) a writ
of mandamus can issue to compel the JBC to submit the list of nominees to the
President, considering that its duty to prepare the list of at least three nominees is
unqualified, and the submission of the list is a ministerial act that the JBC is mandated
to perform under the Constitution; as such, the JBC, the nature of whose principal
function is executive, is not vested with the power to resolve who has the authority to
appoint the next Chief Justice and, therefore, has no discretion to withhold the list from
the President; [29] and (e) a writ of mandamus cannot issue to compel the JBC to include
or exclude particular candidates as nominees, considering that there is no imperative
duty on its part to include in or exclude from the list particular individuals, but, on the
contrary, the JBC's determination of who it nominates to the President is an exercise of
a discretionary duty.[30]

The OSG contends that the incumbent President may appoint the next Chief Justice,
because the prohibition under Section 15, Article VII of the Constitution does not apply
to appointments in the Supreme Court. It argues that any vacancy in the Supreme Court
must be filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of
the Constitution; [31] that in their deliberations on the mandatory period for the
appointment of Supreme Court Justices, the framers neither mentioned nor referred to
the ban against midnight appointments, or its effects on such period, or vice versa;
[32]
that had the framers intended the prohibition to apply to Supreme Court
appointments, they could have easily expressly stated so in the Constitution, which
explains why the prohibition found in Article VII (Executive Department) was not written
in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII
ample restrictions or limitations on the President's power to appoint members of the
Supreme Court to ensure its independence from "political vicissitudes" and its
"insulation from political pressures," [33] such as stringent qualifications for the positions,
the establishment of the JBC, the specified period within which the President shall
appoint a Supreme Court Justice.

The OSG posits that although Valenzuela involved the appointment of RTC Judges, the
situation now refers to the appointment of the next Chief Justice to which the prohibition
does not apply; that, at any rate, Valenzuela even recognized that there might be "the
imperative need for an appointment during the period of the ban," like when the
membership of the Supreme Court should be "so reduced that it will have no quorum, or
should the voting on a particular important question requiring expeditious resolution be
divided";[34] and that Valenzuela also recognized that the filling of vacancies in the
Judiciary is undoubtedly in the public interest, most especially if there is any compelling
reason to justify the making of the appointments during the period of the prohibition. [35]

Lastly, the OSG urges that there are now undeniably compelling reasons for the
incumbent President to appoint the next Chief Justice, to wit: (a) a deluge of cases
involving sensitive political issues is "quite expected"; [36] (b) the Court acts as the
Presidential Electoral Tribunal (PET), which, sitting en banc, is the sole judge of all
contests relating to the election, returns, and qualifications of the President and Vice
President and, as such, has "the power to correct manifest errors on the statement of
votes (SOV) and certificates of canvass (COC)"; [37] (c) if history has shown that
during ordinary times the Chief Justice was appointed immediately upon the occurrence
of the vacancy, from the time of the effectivity of the Constitution, there is now even
more reason to appoint the next Chief Justice immediately upon the retirement of Chief
Justice Puno;[38] and (d) should the next Chief Justice come from among the incumbent
Associate Justices of the Supreme Court, thereby causing a vacancy, it also becomes
incumbent upon the JBC to start the selection process for the filling up of the vacancy in
accordance with the constitutional mandate. [39]

On March 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]

(b) The opposition-in-intervention dated February 22, 2010 of Atty. Christian Robert S.
Lim (Lim);

(c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso V. Tan, Jr.
(Tan);
(d) The comment/opposition-in-intervention dated March 1, 2010 of the National Union
of People's Lawyers (NUPL);

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

(f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the
Philippines-Davao del Sur Chapter and its Immediate Past President, Atty. Israelito
P. Torreon (IBP- Davao del Sur);

(g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L.
Boiser (Boiser);

(h) The consolidated comment/opposition-in-intervention dated February 26, 2010 of

BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary General Renato M.
Reyes, Jr.; Confederation for Unity, Recognition and Advancement of Government
Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang
Mahihirap (KADAMAY) Secretary General Gloria Arellano; Alyansa ng
Nagkakaisang Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN)
Chairman Ken Leonard Ramos; Tayo ang Pag-asa Convenor Alvin Peters; League
of Filipino Students (LFS) Chairman James Mark Terry Lacuanan Ridon; National
Union of Students of the Philippines (NUSP) Chairman Einstein Recedes, College
Editors Guild of the Philippines (CEGP) Chairman Vijae Alquisola; and Student
Christian Movement of the Philippines (SCMP) Chairman Ma. Cristina Angela
Guevarra (BAYAN et al.);

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

(j) The consolidated comment/opposition-in-intervention dated March 4, 2010 of the

Women Trial Lawyers Organization of 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. Guinevere de Leon (WTLOP).

Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL take the
position that De Castro's petition was bereft of any basis, because under Section 15,
Article VII, the outgoing President is constitutionally banned from making any
appointments from March 10, 2010 until June 30, 2010, including the appointment of the
successor of Chief Justice Puno. Hence, mandamus does not lie to compel the JBC to
submit the list of nominees to the outgoing President if the constitutional prohibition is
already in effect. Tan adds that the prohibition against midnight appointments was
applied by the Court to the appointments to the Judiciary made by then President
Ramos, with the Court holding that the duty of the President to fill the vacancies within
90 days from occurrence of the vacancies (for the Supreme Court) or from the
submission of the list (for all other courts) was not an excuse to violate the constitutional
prohibition.

Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose
the insistence that Valenzuela recognizes the possibility that the President may appoint
the next Chief Justice if exigent circumstances warrant the appointment, because that
recognition is obiter dictum;and aver that the absence of a Chief Justice or even an
Associate Justice does not cause epic damage or absolute disruption or paralysis in the
operations of the Judiciary. They insist that even without the successor of Chief Justice
Puno being appointed by the incumbent President, the Court is allowed to sit and
adjudge en banc or in divisions of three, five or seven members at its discretion; that a
full membership of the Court is not necessary; that petitioner De Castro's fears are
unfounded and baseless, being based on a mere possibility, the occurrence of which is
entirely unsure; that it is not in the national interest to have a Chief Justice whose
appointment is unconstitutional and, therefore, void; and that such a situation will create
a crisis in the judicial system and will worsen an already vulnerable political situation.

Intervenors Tan, Ubano, WTLOP, Bello et al., IBP Dacao del Sur, Corvera, and Boiser
regard De Castro's argument that a permanent Chief Justice is imperative for the
stability of the judicial system and the political situation in the country when the election-
related questions reach the Court as false, because there is an existing law on filling the
void brought about by a vacancy in the office of Chief Justice; that the law is Section 12
of the Judiciary Act of 1948, which has not been repealed by Batas Pambansa Blg. 129
or any other law; that a temporary or an acting Chief Justice is not anathema to judicial
independence; that the designation of an acting Chief Justice is not only provided for by
law, but is also dictated by practical necessity; that the practice was intended to be
enshrined in the 1987 Constitution, but the Commissioners decided not to write it in the
Constitution on account of the settled practice; that the practice was followed under the
1987 Constitution, when, in 1992, at the end of the term of Chief Justice Marcelo B.
Fernan, Associate Justice Andres Narvasa assumed the position as Acting Chief Justice
prior to his official appointment as Chief Justice; that said filling up of a vacancy in the
office of the Chief Justice was acknowledged and even used by analogy in the case of
the vacancy of the Chairman of the Commission on Elections, per Brillantes v. Yorac,
192 SCRA 358; and that the history of the Supreme Court has shown that this rule of
succession has been repeatedly observed and has become a part of its tradition.

Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus Election
Code penalizes as an election offense the act of any government official who appoints,
promotes, or gives any increase in salary or remuneration or privilege to any
government official or employee during the period of 45 days before a regular election;
that the provision covers all appointing heads, officials, and officers of a government
office, agency or instrumentality, including the President; that for the incumbent
President to appoint the next Chief Justice upon the retirement of Chief Justice Puno, or
during the period of the ban under the Omnibus Election Code, constitutes an election
offense; that even an appointment of the next Chief Justice prior to the election ban is
fundamentally invalid and without effect because there can be no appointment until a
vacancy occurs; and that the vacancy for the position can occur only by May 17, 2010.
Intervenor Boiser adds that De Castro's prayer to compel the submission of nominees
by the JBC to the incumbent President is off-tangent because the position of Chief
Justice is still not vacant; that to speak of a list, much more a submission of such list,
before a vacancy occurs is glaringly premature; that the proposed advance appointment
by the incumbent President of the next Chief Justice will be unconstitutional; and that no
list of nominees can be submitted by the JBC if there is no vacancy.

All the intervenors-oppositors submit that Section 15, Article VII makes no distinction
between the kinds of appointments made by the President; and that the Court,
in Valenzuela, ruled that the appointments by the President of the two judges during the
prohibition period were void.

Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not
apply only to the appointments in the Executive Department, but also to judicial
appointments, contrary to the submission of PHILCONSA; that Section 15 does not
distinguish; and that Valenzuela already interpreted the prohibition as applicable to
judicial appointments.

Intervenor WTLOP further posits that petitioner Soriano's contention that the power to
appoint the Chief Justice is vested, not in the President, but in the Supreme Court, is
utterly baseless, because the Chief Justice is also a Member of the Supreme Court as
contemplated under Section 9, Article VIII; and that, at any rate, the term "members"
was interpreted in Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to
the Chief Justice and the Associate Justices of the Supreme Court; that PHILCONSA's
prayer that the Court pass a resolution declaring that persons who manifest their
interest as nominees, but with conditions, shall not be considered nominees by the JBC
is diametrically opposed to the arguments in the body of its petition; that such glaring
inconsistency between the allegations in the body and the relief prayed for highlights the
lack of merit of PHILCONSA's petition; that the role of the JBC cannot be separated
from the constitutional prohibition on the President; and that the Court must direct the
JBC to follow the rule of law, that is, to submit the list of nominees only to the next duly
elected President after the period of the constitutional ban against midnight
appointments has expired.

Oppositor IBP Davao del Sur opines that the JBC - because it is neither a judicial nor a
quasi-judicial body - has no duty under the Constitution to resolve the question of
whether the incumbent President can appoint a Chief Justice during the period of
prohibition; that even if the JBC has already come up with a short list, it still has to bow
to the strict limitations under Section 15, Article VII; that should the JBC defer
submission of the list, it is not arrogating unto itself a judicial function, but simply
respecting the clear mandate of the Constitution; and that the application of the general
rule in Section 15, Article VII to the Judiciary does not violate the principle of separation
of powers, because said 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 is purely ministerial and does not involve the exercise
of judgment; that there can be no default on the part of the JBC in submitting the list of
nominees to the President, considering that the call for applications only begins from the
occurrence of the vacancy in the Supreme Court; and that the commencement of the
process of screening of applicants to fill the vacancy in the office of the Chief Justice
only begins from the retirement on May 17, 2010, for, prior to this date, there is no
definite legal basis for any party to claim that the submission or non-submission of the
list of nominees to the President by the JBC is a matter of right under law.

The main question presented in all the filings herein - because it involves two seemingly
conflicting provisions of the Constitution - imperatively demands the attention and
resolution of this Court, the only authority that can resolve the question definitively and
finally. The imperative demand rests on the ever-present need, first, to safeguard the
independence, reputation, and integrity of the entire Judiciary, particularly this Court, an
institution that has been unnecessarily dragged into the harsh polemics brought on by
the controversy; second, to settle once and for all the doubt about an outgoing
President's power to appoint to the Judiciary within the long period starting two months
before the presidential elections until the end of the presidential term; and third, to set a
definite guideline for the JBC to follow in the discharge of its primary office of screening
and nominating qualified persons for appointment to the Judiciary.

Thus, we resolve.

Ruling of the Court

Locus Standi of Petitioners

The preliminary issue to be settled is whether or not the petitioners have locus standi.

Black defines locus standi as "a right of appearance in a court of justice on a given
question."[41] In public or constitutional litigations, the Court is often burdened with the
determination of the locus standi of the petitioners due to the ever-present need to
regulate the invocation of the intervention of the Court to correct any official action or
policy in order to avoid obstructing the efficient functioning of public officials and offices
involved in public service. It is required, therefore, that the petitioner must have a
personal stake in the outcome of the controversy, for, as indicated in Agan, Jr.
v. Philippine International Air Terminals Co., Inc.:[42]

The question on legal standing is whether such parties have "alleged such a
personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional
[43]
questions." Accordingly, it has been held that the interest of a person assailing
the constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a result of
its enforcement, and not merely that he suffers thereby in some indefinite way. It
must appear that the person complaining has been or is about to be denied some
right or privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the statute or act
complained of.[44]

It is true that as early as in 1937, in People v. Vera,[45] the Court adopted the direct injury
test for determining whether a petitioner in a public action had locus standi. There, the
Court held that the person who would assail the validity of a statute must have "a
personal and substantial interest in the case such that he has sustained, or will sustain
direct injury as a result." Vera was followed in Custodio v. President of the Senate,
[46]
Manila Race Horse Trainers' Association v. De la Fuente,[47] Anti-Chinese League of
the Philippines v. Felix,[48] and Pascual v. Secretary of Public Works.[49]

Yet, the Court has also held that the requirement of locus standi, being a mere
procedural technicality, can be waived by the Court in the exercise of its discretion. For
instance, in 1949, in Araneta v. Dinglasan,[50] the Court liberalized the approach when
the cases had "transcendental importance." Some notable controversies whose
petitioners did not pass the direct injury test were allowed to be treated in the same way
as in Araneta v. Dinglasan.[51]

In the 1975 decision in Aquino v. Commission on Elections,[52] this Court decided to

resolve the issues raised by the petition due to their "far-reaching implications," even if
the petitioner had no personality to file the suit. The liberal approach of Aquino v.
Commission on Elections has been adopted in several notable cases, permitting
ordinary citizens, legislators, and civic

organizations to bring their suits involving the constitutionality or validity of laws,

regulations, and rulings.[53]

However, the assertion of a public right as a predicate for challenging a supposedly

illegal or unconstitutional executive or legislative action rests on the theory that the
petitioner represents the public in general. Although such petitioner may not be as
adversely affected by the action complained against as are others, it is enough that he
sufficiently demonstrates in his petition that he is entitled to protection or relief from the
Court in the vindication of a public right.

Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to
gain locus standi. That is not surprising, for even if the issue may appear to concern
only the public in general, such capacities nonetheless equip the petitioner with
adequate interest to sue. In David v. Macapagal-Arroyo,[54] the Court aptly explains why:

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in
public actions. The distinction was first laid down in Beauchamp v. Silk,[55] where it was
held that the plaintiff in a taxpayer's suit is in a different category from the plaintiff in a
citizen's suit. In the former, the plaintiff is affected by the expenditure of public
funds, while in the latter, he is but the mere instrument of the public concern. As
held by the New York Supreme Court in People ex rel Case v. Collins:[56] "In matter of
mere public right, however...the people are the real parties...It is at least the right,
if not the duty, of every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance be remedied." With
respect to taxpayer's suits, Terr v. Jordan[57] held that "the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use of public
funds to his injury cannot be denied."[58]

Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta (G.R.
No. 191149) all assert their right as citizens filing their petitions on behalf of the public
who are directly affected by the issue of the appointment of the next Chief Justice. De
Castro and Soriano further claim standing as taxpayers, with Soriano averring that he is
affected by the continuing proceedings in the JBC, which involve "unnecessary, if not,
illegal disbursement of public funds." [59]

PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the

law for the purpose of defending, protecting, and preserving the Constitution and
promoting its growth and flowering. It also alleges that the Court has recognized its legal
standing to file cases on constitutional issues in several cases. [60]

In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a member
of the Philippine Bar engaged in the active practice of law, and a former Solicitor
General, former Minister of Justice, former Member of the Interim Batasang Pambansa
and the Regular Batasang Pambansa, and former member of the Faculty of the College
of Law of the University of the Philippines.

The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the
Philippines (IBP) for Southern Luzon and Eastern Visayas. They allege that they have
the legal standing to enjoin the submission of the list of nominees by the JBC to the
President, for "[a]n adjudication of the proper interpretation and application of the
constitutional ban on midnight appointments with regard to respondent JBC's function in
submitting the list of nominees is well within the concern of petitioners, who are duty
bound to ensure that obedience and respect for the Constitution is upheld, most
especially by government offices, such as respondent JBC, who are specifically tasked
to perform crucial functions in the whole scheme of our democratic institution." They
further allege that, reposed in them as members of the Bar, is a clear legal interest in
the process of selecting the members of the Supreme Court, and in the selection of the
Chief Justice, considering that the person appointed becomes a member of the body
that has constitutional supervision and authority over them and other members of the
legal profession.[61]

The Court rules that the petitioners have each demonstrated adequate interest in the
outcome of the controversy as to vest them with the requisite locus standi. The issues
before us are of transcendental importance to the people as a whole, and to the
petitioners in particular. Indeed, the issues affect everyone (including the petitioners),
regardless of one's personal interest in life, because they concern that great doubt
about the authority of the incumbent President to appoint not only the successor of the
retiring incumbent Chief Justice, but also others who may serve in the Judiciary, which
already suffers from a far too great number of vacancies in the ranks of trial judges
throughout the country.

In any event, the Court retains the broad discretion to waive the requirement of legal
standing in favor of any petitioner when the matter involved has transcendental
importance, or otherwise requires a liberalization of the requirement. [62]

Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt
now in order to remove any obstacle or obstruction to the resolution of the essential
issue squarely presented herein. We are not to shirk from discharging our solemn duty
by reason alone of an obstacle more technical than otherwise. In Agan, Jr. v. Philippine
International Air Terminals Co., Inc.,[63] we pointed out: "Standing is a peculiar concept in
constitutional law because in some cases, suits are not brought by parties who have
been personally injured by the operation of a law or any other government act but by
concerned citizens, taxpayers or voters who actually sue in the public interest." But
even if, strictly speaking, the petitioners "are not covered by the definition, it is still within
the wide discretion of the Court to waive the requirement and so remove the
impediment to its addressing and resolving the serious constitutional questions
raised."[64]

Justiciability

Intervenor NUPL maintains that there is no actual case or controversy that is

appropriate or ripe for adjudication, considering that although the selection process
commenced by the JBC is going on, there is yet no final list of nominees; hence, there
is no imminent controversy as to whether such list must be submitted to the incumbent
President, or reserved for submission to the incoming President.

Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for judicial
determination, pointing out that petitioner De Castro has not even shown that the JBC
has already completed its selection process and is now ready to submit the list to the
incumbent President; and that petitioner De Castro is merely presenting a hypothetical
scenario that is clearly not sufficient for the Court to exercise its power of judicial review.

Intervenors Corvera and Lim separately opine that De Castro's petition rests on an
overbroad and vague allegation of political tension, which is insufficient basis for the
Court to exercise its power of judicial review.

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

Intervenors Bello et al. submit that there exist no conflict of legal rights and no assertion
of opposite legal claims in any of the petitions; that PHILCONSA does not allege any
action taken by the JBC, but simply avers that the conditional manifestations of two
Members of the Court, accented by the divided opinions and interpretations of legal
experts, or associations of lawyers and law students on the issues published in the daily
newspapers are "matters of paramount and transcendental importance to the bench,
bar and general public"; that PHILCONSA fails not only to cite any legal duty or allege
any failure to perform the duty, but also to indicate what specific action should be done
by the JBC; that Mendoza does not even attempt to portray the matter as a controversy
or conflict of rights, but, instead, prays that the Court should "rule for the guidance of"
the JBC; that the fact that the Court supervises the JBC does not automatically imply
that the Court can rule on the issues presented in the Mendoza petition, because
supervision involves oversight, which means that the subordinate officer or body must
first act, and if such action is not in accordance with prescribed rules, then, and only
then, may the person exercising oversight order the action to be redone to conform to
the prescribed rules; that the Mendoza petition does not allege that the JBC has
performed a specific act susceptible to correction for being illegal or unconstitutional;
and that the Mendoza petition asks the Court to issue an advisory ruling, not to exercise
its power of supervision to correct a wrong act by the JBC, but to declare the state of
the law in the absence of an actual case or controversy.

We hold that the petitions set forth an actual case or controversy that is ripe for judicial
determination. The reality is that the JBC already commenced the proceedings for the
selection of the nominees to be included in a short list to be submitted to the President
for consideration of which of them will succeed Chief Justice Puno as the next Chief
Justice. Although the position is not yet vacant, the fact that the JBC began the process
of nomination pursuant to its rules and practices, although it has yet to decide whether
to submit the list of nominees to the incumbent outgoing President or to the next
President, makes the situation ripe for judicial determination, because the next steps
are the public interview of the candidates, the preparation of the short list of candidates,
and the "interview of constitutional experts, as may be needed."

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

The ripeness of the controversy for judicial determination may not be doubted. The
challenges to the authority of the JBC to open the process of nomination and to
continue the process until the submission of the list of nominees; the insistence of some
of the petitioners to compel the JBC through mandamus to submit the short list to the
incumbent President; the counter-insistence of the intervenors to prohibit the JBC from
submitting the short list to the incumbent President on the ground that said list should
be submitted instead to the next President; the strong position that the incumbent
President is already prohibited under Section 15, Article VII from making any
appointments, including those to the Judiciary, starting on May 10, 2010 until June 30,
2010; and the contrary position that the incumbent President is not so prohibited are
only some of the real issues for determination. All such issues establish the ripeness of
the controversy, considering that for some the short list must be submitted before the
vacancy actually occurs by May 17, 2010. The outcome will not be an abstraction, or a
merely hypothetical exercise. The resolution of the controversy will surely settle - with
finality - the nagging questions that are preventing the JBC from moving on with the
process that it already began, or that are reasons persuading the JBC to desist from the
rest of the process.

We need not await the occurrence of the vacancy by May 17, 2010 in order for the
principal issue to ripe for judicial determination by the Court. It is enough that one
alleges conduct arguably affected with a constitutional interest, but seemingly
proscribed by the Constitution. A reasonable certainty of the occurrence of the
perceived threat to a constitutional interest is sufficient to afford a basis for bringing a
challenge, provided the Court has sufficient facts before it to enable it to intelligently
adjudicate the issues.[65] Herein, the facts are not in doubt, for only legal issues remain.

Substantive Merits

I
Prohibition under Section 15, Article VII does not apply
to appointments to fill a vacancy in the Supreme Court
or to other appointments to the Judiciary

Two constitutional provisions are seemingly in conflict.

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

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

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

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

In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino
and Inting, submit that the incumbent President can appoint the successor of Chief
Justice Puno upon his retirement on May 17, 2010, on the ground that the prohibition
against presidential appointments under Section 15, Article VII does not extend to
appointments in the Judiciary.

The Court agrees with the submission.

First. The records of the deliberations of the Constitutional Commission reveal that the
framers devoted time to meticulously drafting, styling, and arranging the Constitution.
Such meticulousness indicates that the organization and arrangement of the provisions
of the Constitution were not arbitrarily or whimsically done by the framers, but purposely
made to reflect their intention and manifest their vision of what the Constitution should
contain.

The Constitution consists of 18 Articles, three of which embody the allocation of the
awesome powers of government among the three great departments, the Legislative
(Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The
arrangement was a true recognition of the principle of separation of powers that
underlies the political structure, as Constitutional Commissioner Adolfo S. Azcuna (later
a worthy member of the Court) explained in his sponsorship speech:

We have in the political part of this Constitution opted for the separation of powers in
government because we believe that the only way to protect freedom and liberty is to
separate and divide the awesome powers of government. Hence, we return to the
separation of powers doctrine and the legislative, executive and judicial departments. [66]

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

Article VIII is dedicated to the Judicial Department and defines the duties and
qualifications of Members of the Supreme Court, among others. Section 4(1) and
Section 9 of this Article are the provisions specifically providing for the appointment of
Supreme Court Justices. In particular, Section 9 states that the appointment of Supreme
Court Justices can only be made by the President upon the submission of a list of at
least three nominees by the JBC; Section 4(1) of the Article mandates the President to
fill the vacancy within 90 days from the occurrence of the vacancy.

Had the framers intended to extend the prohibition contained in Section 15, Article VII to
the appointment of Members of the Supreme Court, they could have explicitly done so.
They could not have ignored the meticulous ordering of the provisions. They would
have easily and surely written the prohibition made explicit in Section 15, Article VII as
being equally applicable to the appointment of Members of the Supreme Court in Article
VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done
only reveals that the prohibition against the President or Acting President making
appointments within two months before the next presidential elections and up to the end
of the President's or Acting President's term does not refer to the Members of the
Supreme Court.
Although Valenzuela[67] came to hold that the prohibition covered even judicial
appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the
deliberations of the Constitutional Commission. Thereby, the confirmation made to the
JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former
member of the Constitutional Commission, about the prohibition not being intended to
apply to the appointments to the Judiciary, which confirmation Valenzuela even
expressly mentioned, should prevail.

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

V . Intent of the Constitutional Commission

The journal of the Commission which drew up the present Constitution discloses that
the original proposal was to have an eleven-member Supreme Court. Commissioner
Eulogio Lerum wanted to increase the number of Justices to fifteen. He also wished to
ensure that that number would not be reduced for any appreciable length of time (even
only temporarily), and to this end proposed that any vacancy "must be filled within two
months from the date that the vacancy occurs." His proposal to have a 15-member
Court was not initially adopted. Persisting however in his desire to make certain that the
size of the Court would not be decreased for any substantial period as a result of
vacancies, Lerum proposed the insertion in the provision (anent the Court's
membership) of the same mandate that "IN CASE OF ANY VACANCY, THE SAME
SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF." He
later agreed to suggestions to make the period three, instead of two, months. As thus
amended, the proposal was approved. As it turned out, however, the Commission
ultimately agreed on a fifteen-member Court. Thus it was that the section fixing the
composition of the Supreme Court came to include a command to fill up any
vacancy therein within 90 days from its occurrence.

In this connection, it may be pointed out that that instruction that any "vacancy shall
be filled within ninety days" (in the last sentence of Section 4 (1) of Article VIII) contrasts
with the prohibition in Section 15, Article VII, which is couched in stronger negative
language - that "a President or Acting President shall not make appointments..."

The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now
a Member of this Court) to add to what is now Section 9 of Article VIII, the following
paragraph: "WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE
THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST"
(of nominees by the Judicial and Bar Council to the President). Davide stated that his
purpose was to provide a "uniform rule" for lower courts. According to him, the 90-day
period should be counted from submission of the list of nominees to the President in
view of the possibility that the President might reject the list submitted to him and the
JBC thus need more time to submit a new one.
On the other hand, Section 15, Article VII - which in effect deprives the President of his
appointing power "two months immediately before the next presidential elections up to
the end of his term" - was approved without discussion. [68]

However, the reference to the records of the Constitutional Commission did not advance
or support the result in Valenzuela. Far to the contrary, the records disclosed the
express intent of the framers to enshrine in the Constitution, upon the initiative of
Commissioner Eulogio Lerum, "a command [to the President] to fill up any vacancy
therein within 90 days from its occurrence," which even Valenzuela conceded.[69] The
exchanges during deliberations of the Constitutional Commission on October 8, 1986
further show that the filling of a vacancy in the Supreme Court within the 90-day period
was a true mandate for the President, viz:

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

MR. CONCEPCION. Yes.

MR. DE CASTRO. And the second sentence of this subsection reads: "Any
vacancy shall be filled within ninety days from the occurrence thereof."

MR. CONCEPCION. That is right.

MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy?

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

Moreover, the usage in Section 4(1), Article VIII of the word shall - an imperative,
operating to impose a duty that may be enforced [71] - should not be disregarded.
Thereby, Sections 4(1) imposes on the President the imperative duty to make an
appointment of a Member of the Supreme Court within 90 days from the occurrence of
the vacancy. The failure by the President to do so will be a clear disobedience to the
Constitution.

The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the
vacancy in the Supreme Court was undoubtedly a special provision to establish
a definite mandate for the President as the appointing power, and cannot be defeated
by mere judicial interpretation in Valenzuela to the effect that Section 15, Article VII
prevailed because it was "couched in stronger negative language." Such interpretation
even turned out to be conjectural, in light of the records of the Constitutional
Commission's deliberations on Section 4 (1), Article VIII.

How Valenzuela justified its pronouncement and result is hardly warranted. According to
an authority on statutory construction: [72]
xxx the court should seek to avoid any conflict in the provisions of the statute by
endeavoring to harmonize and reconcile every part so that each shall be effective. It is
not easy to draft a statute, or any other writing for that matter, which may not in some
manner contain conflicting provisions. But what appears to the reader to be a conflict
may not have seemed so to the drafter. Undoubtedly, each provision was inserted for a
definite reason. Often by considering the enactment in its entirety, what appears to be
on its face a conflict may be cleared up and the provisions reconciled.

Consequently, that construction which will leave every word operative will be favored
over one which leaves some word or provision meaningless because of inconsistency.
But a word should not be given effect, if to do so gives the statute a meaning contrary to
the intent of the legislature. On the other hand, if full effect cannot be given to the words
of a statute, they must be made effective as far as possible. Nor should the provisions
of a statute which are inconsistent be harmonized at a sacrifice of the legislative
intention. It may be that two provisions are irreconcilable; if so, the one which expresses
the intent of the law-makers should control. And the arbitrary rule has been frequently
announced that where there is an irreconcilable conflict between the different provisions
of a statute, the provision last in order of position will prevail, since it is the latest
expression of the legislative will. Obviously, the rule is subject to deserved criticism. It is
seldom applied, and probably then only where an irreconcilable conflict exists between
different sections of the same act, and after all other means of ascertaining the meaning
of the legislature have been exhausted. Where the conflict is between two statutes,
more may be said in favor of the rule's application, largely because of the principle of
implied repeal.

In this connection, PHILCONSA's urging of a revisit and a review of Valenzuela is timely

and appropriate. Valenzuela arbitrarily ignored the express intent of the Constitutional
Commission to have Section 4 (1), Article VIII stand independently of any other
provision, least of all one found in Article VII. It further ignored that the two provisions
had no irreconcilable conflict, regardless of Section 15, Article VII being couched in the
negative. As judges, we are not to unduly interpret, and should not accept an
interpretation that defeats the intent of the framers. [73]

Consequently, prohibiting the incumbent President from appointing a Chief Justice on

the premise that Section 15, Article VII extends to appointments in the Judiciary cannot
be sustained. A misinterpretation like Valenzuela should not be allowed to last after its
false premises have been exposed. [74] It will not do to merely
distinguish Valenzuela from these cases, for the result to be reached herein is entirely
incompatible with what Valenzuela decreed. Consequently, Valenzuela nowdeserves to
be quickly sent to the dustbin of the unworthy and forgettable.

We reverse Valenzuela.

Second. Section 15, Article VII does not apply as well to all other appointments in the
Judiciary.
There is no question that one of the reasons underlying the adoption of Section 15 as
part of Article VII was to eliminate midnight appointments from being made by
an outgoing Chief Executive in the mold of the appointments dealt with in the leading
case of Aytona v. Castillo.[75] In fact, in Valenzuela, the Court so observed, stating that:

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

xxx

The second type of appointments prohibited by Section 15, Article VII consists of the so-
called "midnight" appointments. In Aytona v. Castillo, it was held that after the
proclamation of Diosdado Macapagal as duly elected President, President Carlos P.
Garcia, who was defeated in his bid for reelection, became no more than a "caretaker"
administrator whose duty was to "prepare for the orderly transfer of authority to the
incoming President." Said the Court:

"The filling up of vacancies in important positions, if few, and so spaced as to

afford some assurance of deliberate action and careful consideration of the need
for the appointment and appointee's qualifications may undoubtedly be
permitted. But the issuance of 350 appointments in one night and the planned
induction of almost all of them in a few hours before the inauguration of the new
President may, with some reason, be regarded by the latter as an abuse of
Presidential prerogatives, the steps taken being apparently a mere partisan effort
to fill all vacant positions irrespective of fitness and other conditions, and thereby
to deprive the new administration of an opportunity to make the corresponding
appointments."

As indicated, the Court recognized that there may well be appointments to important
positions which have to be made even after the proclamation of the new
President. Such appointments, so long as they are "few and so spaced as to
afford some assurance of deliberate action and careful consideration of the need
for the appointment and the appointee's qualifications," can be made by the
outgoing President. Accordingly, several appointments made by President Garcia,
which were shown to have been well considered, were upheld.

Section 15, Article VII has a broader scope than the Aytona ruling. It may not
unreasonably be deemed to contemplate not only "midnight" appointments -
those made obviously for partisan reasons as shown by their number and the
time of their making - but also appointments presumed made for the purpose of
influencing the outcome of the Presidential election.

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

Considering the respective reasons for the time frames for filling vacancies in the courts
and the restriction on the President's power of appointment, it is this Court's view that,
as a general proposition, in case of conflict, the former should yield to the latter. Surely,
the prevention of vote-buying and similar evils outweighs the need for avoiding delays in
filling up of court vacancies or the disposition of some cases. Temporary vacancies can
abide the period of the ban which, incidentally and as earlier pointed out, comes to exist
only once in every six years. Moreover, those occurring in the lower courts can be filled
temporarily by designation. But prohibited appointments are long-lasting and permanent
in their effects. They may, as earlier pointed out, in fact influence the results of elections
and, for that reason, their making is considered an election offense. [76]

Given the background and rationale for the prohibition in Section 15, Article VII, we have
no doubt that the Constitutional Commission confined the prohibition to appointments
made in the Executive Department. The framers did not need to extend the prohibition
to appointments in the Judiciary, because their establishment of the JBC and their
subjecting the nomination and screening of candidates for judicial positions to the
unhurried and deliberate prior process of the JBC ensured that there would no longer be
midnight appointments to the Judiciary. If midnight appointments in the mold
of Aytona were made in haste and with irregularities, or made by an outgoing Chief
Executive in the last days of his administration out of a desire to subvert the policies of
the incoming President or for partisanship, [77] the appointments to the Judiciary made
after the establishment of the JBC would not be suffering from such defects because of
the JBC's prior processing of candidates. Indeed, it is axiomatic in statutory construction
that the ascertainment of the purpose of the enactment is a step in the process of
ascertaining the intent or meaning of the enactment, because the reason for the
enactment must necessarily shed considerable light on "the law of the statute," i.e., the
intent; hence, the enactment should be construed with reference to its intended scope
and purpose, and the court should seek to carry out this purpose rather than to defeat it.
[78]

Also, the intervention of the JBC eliminates the danger that appointments to the
Judiciary can be made for the purpose of buying votes in a coming presidential election,
or of satisfying partisan considerations. The experience from the time of the
establishment of the JBC shows that even candidates for judicial positions at any level
backed by people influential with the President could not always be assured of being
recommended for the consideration of the President, because they first had to undergo
the vetting of the JBC and pass muster there. Indeed, the creation of the JBC
was precisely intended to de-politicize the Judiciary by doing away with the intervention
of the Commission on Appointments. This insulating process was absent from
the Aytona midnight appointment.
Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in
the Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC itself
when it met on March 9, 1998 to discuss the question raised by some sectors about the
"constitutionality of xxx appointments" to the Court of Appeals in light of the forthcoming
presidential elections. He assured that "on the basis of the (Constitutional)
Commission's records, the election ban had no application to appointments to the Court
of Appeals."[79] This confirmation was accepted by the JBC, which then submitted to the
President for consideration the nominations for the eight vacancies in the Court of
Appeals.[80]

The fault of Valenzuela was that it accorded no weight and due consideration to the
confirmation of Justice Regalado. Valenzuela was weak, because it relied on
interpretation to determine the intent of the framers rather than on the deliberations of
the Constitutional Commission. Much of the unfounded doubt about the President's
power to appoint during the period of prohibition in Section 15, Article VII could have
been dispelled since its promulgation on November 9, 1998, had Valenzuela properly
acknowledged and relied on the confirmation of a distinguished member of the
Constitutional Commission like Justice Regalado.

Fourth. Of the 23 sections in Article 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 by an Acting President,[81] and evidently refers only to appointments in the
Executive Department. It has no application to appointments in the Judiciary,
because temporary or acting appointments can only undermine the independence of the
Judiciary due to their being revocable at will. [82] The letter and spirit of the Constitution
safeguard that independence. Also, there is no law in the books that authorizes
the revocation of appointments in the Judiciary. Prior to their mandatory retirement or
resignation, judges of the first and second level courts and the Justices of the third level
courts may only be removed for cause, but the Members of the Supreme Court may be
removed only by impeachment.

Section 16 covers only the presidential appointments that require confirmation by the
Commission on Appointments. Thereby, the Constitutional Commission restored the
requirement of confirmation by the Commission on Appointments after the requirement
was removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the
restored requirement did not include appointments to the Judiciary.[83]

Section 14, Section 15, and Section 16 are obviously of the same character, in that they
affect the power of the President to appoint. The fact that Section 14 and Section 16
refer only to appointments within the Executive Department renders conclusive that
Section 15 also applies only to the Executive Department. This conclusion is consistent
with the rule that every part of the statute must be interpreted with reference to the
context, i.e. that every part must be considered together with the other parts, and kept
subservient to the general intent of the whole enactment. [84]It is absurd to assume that
the framers deliberately situated Section 15 between Section 14 and Section 16, if they
intended Section 15 to cover all kinds of presidential appointments. If that was their
intention in respect of appointments to the Judiciary, the framers, if only to be clear,
would have easily and surely inserted a similar prohibition in Article VIII, most likely
within Section 4 (1) thereof.

Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to
the Judiciary further undermines the intent of the Constitution of ensuring the
independence of the Judicial Department from the Executive and Legislative
Departments. Such a holding will tie the Judiciary and the Supreme Court to the
fortunes or misfortunes of political leaders vying for the Presidency in a presidential
election. Consequently, the wisdom of having the new President, instead of the current
incumbent President, appoint the next Chief Justice is itself suspect, and cannot ensure
judicial independence, because the appointee can also become beholden to the
appointing authority. In contrast, the appointment by the incumbent President does not
run the same risk of compromising judicial independence, precisely because her term
will end by June 30, 2010.

Sixth. The argument has been raised to the effect that there will be no need for the
incumbent President to appoint during the prohibition period the successor of Chief
Justice Puno within the context of Section 4 (1), Article VIII, because anyway there will
still be about 45 days of the 90 days mandated in Section 4(1), Article VIII remaining.

The argument is flawed, because it is focused only on the coming vacancy occurring
from Chief Justice Puno's retirement by May 17, 2010. It ignores the need to apply
Section 4(1) to every situation of a vacancy in the Supreme Court.

The argument also rests on the fallacious assumption that there will still be time
remaining in the 90-day period under Section 4(1), Article VIII. The fallacy is easily
demonstrable, as the OSG has shown in its comment.

Section 4 (3), Article VII requires the regular elections to be held on the second Monday
of May, letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the
regular presidential elections are held on May 8, the period of the prohibition is 115
days. If such elections are held on May 14, the period of the prohibition is 109 days.
Either period of the prohibition is longer than the full mandatory 90-day period to fill the
vacancy in the Supreme Court. The result is that there are at least 19 occasions (i.e.,
the difference between the shortest possible period of the ban of 109 days and the 90-
day mandatory period for appointments) in which the outgoing President would be in no
position to comply with the constitutional duty to fill up a vacancy in the Supreme Court.
It is safe to assume that the framers of the Constitution could not have intended such an
absurdity. In fact, in their deliberations on the mandatory period for the appointment of
Supreme Court Justices under Section 4 (1), Article VIII, the framers neither discussed,
nor mentioned, nor referred to the ban against midnight appointments under Section 15,
Article VII, or its effects on the 90-day period, or vice versa. They did not need to,
because they never intended Section 15, Article VII to apply to a vacancy in the
Supreme Court, or in any of the lower courts.

Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether
a JBC list is necessary at all for the President - any President - to appoint a Chief
Justice if the appointee is to come from the ranks of the sitting justices of the Supreme
Court.

Sec. 9, Article VIII says:

xxx. The Members of the Supreme Court xxx shall be appointed by the President from a
list of at least three nominees prepared by the Judicial and Bar Council for any vacancy.
Such appointments need no confirmation.

xxx
The provision clearly refers to an appointee coming into the Supreme Court from the
outside, that is, a non-member of the Court aspiring to become one. It speaks of
candidates for the Supreme Court, not of those who are already members or sitting
justices of the Court, all of whom have previously been vetted by the JBC.

Can the President, therefore, appoint any of the incumbent Justices of the Court as
Chief Justice?

The question is not squarely before us at the moment, but it should lend itself to a
deeper analysis if and when circumstances permit. It should be a good issue for the
proposed Constitutional Convention to consider in the light of Senate President Juan
Ponce Enrile's statement that the President can appoint the Chief Justice from among
the sitting justices of the Court even without a JBC list.

II
The Judiciary Act of 1948

The posture has been taken that no urgency exists for the President to appoint the
successor of Chief Justice Puno, considering that the Judiciary Act of 1948 can still
address the situation of having the next President appoint the successor.

Section 12 of the Judiciary Act of 1948 states:

Section 12. Vacancy in Office of Chief Justice. -- In case of a vacancy in the office of
Chief Justice of the Supreme Court or of his inability to perform the duties and powers
of his office, they shall devolve upon the Associate Justice who is first in precedence,
until such disability is removed, or another Chief Justice is appointed and duly qualified.
This provision shall apply to every Associate Justice who succeeds to the office of Chief
Justice.

The provision calls for an Acting Chief Justice in the event of a vacancy in the office of
the Chief Justice, or in the event that the Chief Justice is unable to perform his duties
and powers. In either of such circumstances, the duties and powers of the office of the
Chief Justice shall devolve upon the Associate Justice who is first in precedence until a
new Chief Justice is appointed or until the disability is removed.

Notwithstanding that there is no pressing need to dwell on this peripheral matter after
the Court has hereby resolved the question of consequence, we do not find it amiss to
confront the matter now.

We cannot agree with the posture.

A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is
composed of a Chief Justice and 14 Associate Justices, who all shall be appointed by
the President from a list of at least three nominees prepared by the JBC for every
vacancy, which appointments require no confirmation by the Commission on
Appointments. With reference to the Chief Justice, he or she is appointed by the
President as Chief Justice, and the appointment is never in an acting capacity. The
express reference to a Chief Justice abhors the idea that the framers contemplated
an Acting Chief Justice to head the membership of the Supreme Court. Otherwise, they
would have simply written so in the Constitution. Consequently, to rely on Section 12 of
the Judiciary Act of 1948 in order to forestall the imperative need to appoint the next
Chief Justice soonest is to defy the plain intent of the Constitution.

For sure, the framers intended the position of Chief Justice to be permanent, not one to
be occupied in an acting or temporary capacity. In relation to the scheme of things
under the present Constitution, Section 12 of the Judiciary Act of 1948 only responds to
a rare situation in which the new Chief Justice is not yet appointed, or in which the
incumbent Chief Justice is unable to perform the duties and powers of the office. It
ought to be remembered, however, that it was enacted because the Chief Justice
appointed under the 1935 Constitution was subject to the confirmation of the
Commission on Appointments, and the confirmation process might take longer than
expected.

The appointment of the next Chief Justice by the incumbent President is preferable to
having the Associate Justice who is first in precedence take over. Under the
Constitution, the heads of the Legislative and Executive Departments are popularly
elected, and whoever are elected and proclaimed at once become the leaders of their
respective Departments. However, the lack of any appointed occupant of the office of
Chief Justice harms the independence of the Judiciary, because the Chief Justice is the
head of the entire Judiciary. The Chief Justice performs functions absolutely significant
to the life of the nation. With the entire Supreme Court being the Presidential Electoral
Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no obstacle to
the appointment of the next Chief Justice, aside from its being mandatory for the
incumbent President to make within the 90-day period from May 17, 2010, there is no
justification to insist that the successor of Chief Justice Puno be appointed by the next
President.
Historically, under the present Constitution, there has been no wide gap between the
retirement and the resignation of an incumbent Chief Justice, on one hand, and the
appointment to and assumption of office of his successor, on the other hand. As
summarized in the comment of the OSG, the chronology of succession is as follows:

1. When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice
Pedro Yap was appointed on the same day;

2. When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan
was appointed on the same day;

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

4. When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario
Davide, Jr. was sworn into office the following early morning of November 30,
1998;

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

6. When Chief Justice Panganiban retired on December 6, 2006, Chief Justice

Reynato S. Puno took his oath as Chief Justice at midnight of December 6, 2006.
[85]

III
Writ of mandamus does not lie against the JBC

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

Mandamus shall issue when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act that the law specifically enjoins as a duty
resulting from an office, trust, or station. [86] It is proper when the act against which it is
directed is one addressed to the discretion of the tribunal or officer. Mandamus is not
available to direct the exercise of a judgment or discretion in a particular way. [87]

For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has
a clear legal right to the act demanded; (b) it must be the duty of the defendant to
perform the act, because it is mandated by law; (c) the defendant unlawfully neglects
the performance of the duty enjoined by law; (d) the act to be performed is ministerial,
not discretionary; and (e) there is no appeal or any other plain, speedy and adequate
remedy in the ordinary course of law.
Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least three
nominees to the President for every vacancy in the Judiciary:

Section 8. xxx

(5) The Council shall have the principal function of recommending appointees to
the Judiciary. xxx

Section 9. The Members of the Supreme Court and judges of lower courts shall be
appointed by the President from a list of at least three nominees prepared by the
Judicial and Bar Council for every vacancy. Such appointments need no
confirmation.

For the lower courts, the President shall issue the appointments within ninety days
from the submission of the list.

However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the
vacancy in the Supreme Court within 90 days from the occurrence of the vacancy, and
within 90 days from the submission of the list, in the case of the lower courts. The 90-
day period is directed at the President, not at the JBC. Thus, the JBC should start the
process of selecting the candidates to fill the vacancy in the Supreme Court before the
occurrence of the vacancy.

Under the Constitution, it is mandatory for the JBC to submit to the President the list of
nominees to fill a vacancy in the Supreme Court in order to enable the President to
appoint one of them within the 90-day period from the occurrence of the vacancy. The
JBC has no discretion to submit the list to the President after the vacancy occurs,
because that shortens the 90-day period allowed by the Constitution for the President to
make the appointment. For the JBC to do so will be unconscionable on its part,
considering that it will thereby effectively and illegally deprive the President of the ample
time granted under the Constitution to reflect on the qualifications of the nominees
named in the list of the JBC before making the appointment.

The duty of the JBC to submit a list of nominees before the start of the President's
mandatory 90-day period to appoint is ministerial, but its selection of the candidates
whose names will be in the list to be submitted to the President lies within the discretion
of the JBC. The object of the petitions for mandamus herein should only refer to the
duty to submit to the President the list of nominees for every vacancy in the Judiciary,
because in order to constitute unlawful neglect of duty, there must be an unjustified
delay in performing that duty.[88] For mandamus to lie against the JBC, therefore, there
should be an unexplained delay on its part in recommending nominees to the Judiciary,
that is, in submitting the list to the President.

The distinction between a ministerial act and a discretionary one has been delineated in
the following manner:
The distinction between a ministerial and discretionary act is well delineated. A purely
ministerial act or duty is one which an officer or tribunal performs in a given state
of facts, in a prescribed manner, in obedience to the mandate of a legal authority,
without regard to or the exercise of his own judgment upon the propriety or
impropriety of the act done. If the law imposes a duty upon a public officer and
gives him the right to decide how or when the duty shall be performed, such duty
is discretionary and not ministerial. The duty is ministerial only when the discharge
of the same requires neither the exercise of official discretion or judgment.[89]

Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to
issue a writ of mandamus against the JBC. The actions for that purpose are premature,
because it is clear that the JBC still has until May 17, 2010, at the latest, within which to
submit the list of nominees to the President to fill the vacancy created by the
compulsory retirement of Chief Justice Puno.

IV
Writ of prohibition does not lie against the JBC

In light of the foregoing disquisitions, the conclusion is ineluctable that only the
President can appoint the Chief Justice. Hence, Soriano's petition for prohibition in G.R.
No. 191032, which proposes to prevent the JBC from intervening in the process of
nominating the successor of Chief Justice Puno, lacks merit.

On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of
merit. The challenge mounted against the composition of the JBC based on the
allegedly unconstitutional allocation of a vote each to the ex officio members from the
Senate and the House of Representatives, thereby prejudicing the chances of some
candidates for nomination by raising the minimum number of votes required in
accordance with the rules of the JBC, is not based on the petitioners' actual interest,
because they have not alleged in their petition that they were nominated to the JBC to
fill some vacancies in the Judiciary. 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 for mandamus in G.R. No. 191057 for being premature;

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

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

(a) To resume its proceedings for the nomination of candidates to fill the vacancy to be
created by the compulsory retirement of Chief Justice Reynato S. Puno by May 17,
2010;
(b) To prepare the short list of nominees for the position of Chief Justice;

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

(d) To continue its proceedings for the nomination of candidates to fill other vacancies in
the Judiciary and submit to the President the short list of nominees corresponding
thereto in accordance with this decision.

SO ORDERED.
G.R. Nos. 187958, 187961, and 187962 April 7, 2010

MAYOR ABRAHAM N. TOLENTINO, Petitioner,

vs.
COMMISSION ON ELECTIONS, JOCELYN RICARDO, ARNEL TARUC, MARLENE
CATAN, MARIA THERESA MENDOZA COSTA, FIDELA ROFOLS CASTILLO,
DOMINADOR BASSI, ROBERTO MALABANAN HERNANDEZ, NERISSA
MANZANO, LEONIDEZ MAGLABE HERNANDEZ, TAGUMPAY REYES, and ELINO
FAJARDO Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. Nos. 187966, 187967, and 187968

VICE-MAYOR CELSO P. DE CASTRO, Petitioner,

vs.
COMMISSION ON ELECTIONS and ARNEL TARUC,

DECISION

BERSAMIN, J.:

Before us are two petitions for certiorari and prohibition assailing several orders of the
Second Division (Division) of the Commission on Election (COMELEC) relative to its
revision of ballots under Section 6, Rule 20 of its Rules of Procedure in the protests on
the results of the local elections in 2007 in Tagaytay City.

In G.R. Nos. 187958 and 187961-62, the petitioner, Abraham N. Tolentino (Tolentino),
seeks the nullification of the orders dated May 8, 20091 and May 25, 2009.2 In the first
order, the Division formally requested the Senate Electoral Tribunal (SET) to allow the
conduct of the revision within the SETs premises; in the second, the Division denied
Tolentinos motion for reconsideration vis--vis the first order. Tolentino prayed for the
issuance of temporary restraining order (TRO) and/or a writ of preliminarily injunction.
In G.R. Nos. 187966-68, the petitioner, Celso P. De Castro (De Castro), assails the
order dated June 2, 2009,3which denied the motion to suspend the scheduled revision
of ballots in the SET premises. De Castro prayed for the issuance of a TRO or writ of
preliminary injunction or status quo ante order.

The petitions were consolidated on July 28, 2009 due to their commonality as to the
facts and issues.

Antecedents

In the May 14, 2007 elections, all the parties ran for elective local offices in Tagaytay
City. Tolentino and De Castro were proclaimed as the duly elected Mayor and Vice-
Mayor, respectively. The private respondents contested the election results in 116 ballot
boxes by filing three separate election protests against the proclaimed winning
candidates for Mayor, Vice-Mayor and Members of the Sanggunian Panlungsod,
docketed as EPC Case

No. 2007-07,4 EPC Case No. 2007-08,5 and EPC Case No. 2007-09.6 The protests were
raffled to the Second Division of the COMELEC. The records do not contain the order
for the consolidation of the cases, but it appears that they were consolidated previously
inasmuch as the caption of all orders issued by the Division indicated the joining of the
cases.

After finding the protests sufficient in form and substance, the Division required the City
Treasurer of Tagaytay City to inventory the protested ballot boxes and to turn them over
to the Election Officer of Tagaytay City for delivery and submission to the COMELECs
Electoral Contests Adjudication Department (ECAD) in Manila.

However, the delivery and submission took place only on December 17, 2008 due to the
moves of Tolentino and De Castro of taking turns to suspend the transmittal of the ballot
boxes to ECAD. Tolentino moved to defer the transmittal of the ballot boxes to ECAD on
the premise that he had to complete the photocopying and verification of the contested
ballots; upon denial of his motion, he elevated the issue to the Court by petition
for certiorari (docketed as G.R. No. 183806-08). The petition was eventually dismissed
for lack of merit on September 16, 2008. 7On his part, De Castro moved for the
reconsideration of the September 7, 2007 order in the COMELEC en banc, which
denied the motion. In the order dated March 6, 2008, the Division re-directed the City
Treasurer and the Election Officer of Tagaytay City to implement the directives of its
September 7, 2007 order.
In this connection, the Court ruled on September 16, 2008 in G.R. No. 183806-08
Tolentinos earlier petition for certiorari that there was no longer any legal bar against
the full implementation of the Divisions September 7, 2007 order for the immediate
transmittal of the ballot boxes for purposes of the revision and recount.

Further delay occurred because 44 of the 116 contested ballot boxes became involved
in the election protest of candidate Aquilino L. Pimentel III against Senator Juan Miguel
F. Zubiri pending in the SET and docketed as SET Case No. 001-07.

On November 21, 2008, De Castro again sought the suspension of the revision
proceedings,8 citing the order issued on November 17, 2008 by the SET, asserting the
SETs preferential custody pursuant to Section 2 of COMELEC Resolution No. 2812
over the ballot boxes, election documents, and election paraphernalia in connection with
SET Case No. 001-07.

However, the Division resolved not to suspend the revision proceedings, and instead
directed the Election Officer of Tagaytay City to deliver the affected ballot boxes to the
SET, with the remainder of the ballot boxes to be deposited in the ECAD Ballot Box
Storage Area in Manila.9

In his Compliance Report dated December 16, 2008, 10 the Election Officer certified that
116 ballot boxes were contested in EPC Nos. 2007-07, 2007-08 and 2007-09; that 44
ballot boxes were delivered to the SET for being simultaneously involved in SET Case
No. 001-07;11 that on December 17, 2008, 72 ballot boxes were delivered to the ECAD;
that of the 44 ballot boxes delivered to the SET, 16 were set aside with appropriate
remarks "No metal seal outside" or "Metal seal not properly locked";12 and that out of the
72 ballot boxes delivered to the ECAD, 24 were set aside with the remarks " No metal
seal outside", or "Metal seal not properly locked", or "2 padlocks only."13

In other words, 40 ballot boxes out of the 116 protested ones were set aside due to
apparent sealing defects or irregularities.

On January 6, 2009, upon receipt of the 72 ballot boxes, the Division ordered the
constitution of four Revision Committees, 14 for the committees to convene and
commence the revision of the 72 ballot boxes in such a way that whenever a ballot box
was opened, its contents should be revised for all of the three protest cases before
opening the next ballot box.

On January 9, 2009, Tolentino and De Castro separately moved for the reconsideration
of the Divisions order. Tolentino thereby raised prematurity due to the unresolved
pending issues, the absence of guidelines or procedure, and the fact that not all the
involved ballot boxes were in the COMELECs custody. De Castro sought to clarify the
dispositions in the assailed order, reminding that there would be a simultaneous revision
for the three protest cases involving three positions; and to suspend the proceedings
until after all pending incidents were resolved pursuant to Section 2, Rule 19 of the
COMELEC Rules of Procedure.

On January 12, 2009, the Division suspended the revision proceedings until all the
contested ballot boxes were already in the custody of the COMELEC. 151avvphi1

It did not take long thereafter before the Division lifted the suspension of the revision
proceedings upon the private respondents manifestation, considering that the SET,
through its letter dated February 16, 2009, had meanwhile agreed to accommodate the
Divisions request to conduct the revision proceedings in the SETs premises from
March 2 to 13, 2009.16

On May 8, 2009, the Division issued the first assailed order in G.R. Nos. 187958 and
187961-62, formally requesting the SET to allow the revision to proceed within its
premises, viz:

Acting on the JOINT MANIFESTATION WITH REQUEST TO SET SCHEDULE OF

REVISION filed by protestants, through counsel on February 16, 2009 and on the
COMMENTS filed by protestee, through counsel, in EPC 2007-07, Abraham N.
Tolentino on February 25, 2009; protestee in EPC 2007-08, Celso P. De Castro on
February 27, 2009; protestees in EPC 2007-08 x x x.

In connection thereto, in order to facilitate the resolution of election protest cases

considering that barely a year is left of the contested term of offices, the Commission
(Second Division) hereby REQUESTS the Senate Electoral Tribunal (SET) to allow the
Commission to conduct revision within its premises, under such terms and conditions
that the Tribunal may impose.

SO ORDERED.17

Tolentino moved to reconsider this order, but the Division denied his motion through its
second assailed order dated May 25, 2009, thus:

xxx

We find protestees allegation unmeritorious. It should be understood that the deferment

of the revision was due to the unavailability at that time of the ballot boxes. To address
this situation, the Commission under its plenary powers, can avail of alternative
methods to facilitate the disposition of cases pursuant to the rule that election protest
cases should be resolved with dispatch. Hence, coordination with other tribunals for
purposes of revision of ballots subject of simultaneous protests is the usual course of
action taken by the Commission.

IN VIEW THEREOF, there is no cogent reason for the Commission (Second Division) to
reconsider its order dated May 8, 2009. Moreover, the Senate Electoral Tribunal, in a
letter dated May 20, 2009 addressed to Presiding Commissioner Nicodemo T. Ferrer,
granted the Commissions request to revise the contested ballots involved in the instant
cases within its premises.

SO ORDERED.18

On May 25, 2009,19 the Division directed anew the constitution of the four Revision
Committees and the commencement of the revision of the 44 ballot boxes within the
SET premises on June 3, 2009.

On May 29, 2009, De Castro filed a verified omnibus motion requesting the Division to
formulate first the mechanics, guidelines and procedure for the simultaneous revision of
the ballots for the three distinct positions protested, and to defer the revision
proceedings until after all pending incidents had been resolved. 20

In its June 2, 2009 order, the Division ruled that:

xxx there is no cogent reason to suspend the scheduled revision of ballots in these
cases.

First, there is no need to specific rules regarding the revision of ballots because the
Revision Committee will conduct the revision of the forty-four (44) contested ballots now
in the custody of the Senate Electoral Tribunal, per case and not simultaneously. The
normal procedure of revision shall be followed.

Second, considering that the twenty-four (24) segregated ballot boxes are in the
custody of the Commission, the appropriate order as regards thereto shall later be
issued.

Anent, protestee De Castro's submission of the names of his revisors and manifestation
of his intent to photocopy all the contested ballots and other related election documents,
the Commission (Second Division) hereby APPROVES and NOTES the same,
respectively.

xxx
SO ORDERED.21

De Castro now assails the June 2, 2009 order in G.R. Nos. 187966-68. It appears that
De Castros omnibus motion and compliance filed on May 29, 2009, which was the
subject of the assailed order, was in effect a motion for the reconsideration of the May
25, 2009 order of the Division received on the same date. 22

In furtherance of his cause, Tolentino filed on June 30, 2009 his supplement to the
petition,23 alleging that events had transpired subsequent to the filing of his petition. He
stated that the revision proceedings concerning EPC 2007-07 conducted within the SET
premises on June 3 to 8, 2009 involved only 28 ballot boxes because the Revision
Committee suspended the revision of the set-aside 16 ballot boxes.

It appears that the Division likewise ordered the Revision Committees: (a) to verify the
condition of the ballot boxes and to submit a report thereon upon the termination of the
revision proceedings;24 (b) to submit a consolidated report on all the set-aside ballot
boxes, including the 16 delivered to the SET whose revision was suspended by the
Revision Committees;25 and (c) not to open the set-aside ballot boxes so that the
Division would not be pre-empted in resolving whether the ballot boxes found to have
defective security devices should be included in the revision of ballots and, instead, to
authorize the Revision Committees only to verify the condition of such ballot boxes and
submit a report thereon, to become the basis for the Division to resolve the pending
issue.26

Issues

In G.R. Nos. 187958 and 187961-62, Tolentino raises the following issues:

I. WHETHER OR NOT PUBLIC RESPONDENT, THE HONORABLE COMMISSION ON

ELECTIONS, COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT ISSUED THE ASSAILED ISSUANCES
ORDERING THE REVISION OF THE FORTY FOUR (44) BALLOT BOXES WITH THE
HONORABLE SENATE ELECTORAL TRIBUNAL WITHOUT FIRST RESOLVING
WHETHER OR NOT THE SIXTEEN (16) BALLOT BOXES OF THE SAID FORTY
FOUR (44) BALLOT BOXES, WHICH WERE SEGREGATED OR SET ASIDE,
SHOULD BE INCLUDED IN THE REVISION.

II. WHETHER OR NOT PUBLIC RESPONDENT, THE HONORABLE COMMISSION

ON ELECTIONS, COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED THE ASSAILED
ISSUANCES ORDERING THE REVISION OF THE FORTY FOUR (44) BALLOT
BOXES WITH THE HONORABLE SENATE ELECTORAL TRIBUNAL WITHOUT
RESOLVING HOW THE REVISION PROCEEDINGS WOULD BE CONDUCTED IN
EPC NOS. 2007-07 TO 09, IN LINE WITH THE ROSAL DOCTRINE AND WITH
OBSERVANCE OF THE BASIC TENETS OF DUE PROCESS.

In his supplement to the petition, he adds the following issues:

I. WHETHER OR NOT THE HONORABLE COMMISSION ON ELECTIONS (SECOND

DIVISION) COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT VIOLATED THE CARDINAL RULE IN
ADMINISTRATIVE CASES.

II. WHETHER HONORABLE COMMISSION ON ELECTIONS (2ND DIVISION)

COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN IT ISSUED PIECEMEAL ORDERS LEADING TO
DISORDERLY PROCEEDINGS.

In G.R. Nos. 187966-68, De Castro raises the sole issue:

WHETHER OR NOT THE PUBLIC RESPONDENT COMELEC SECOND DIVISION

COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION IN ISSUING THE QUESTIONED ORDER DATED JUNE 2, 2009.

Arguments and Contentions of the Parties

Tolentino contends that the Division should first resolve the issue of the inclusion or
exclusion of the protested ballot boxes, considering that the verification, investigation
and examination of their condition had already been terminated by the Election Officer
of Tagaytay City; that citing Rosal v. Commission on Elections (G.R. Nos. 172741 and
168253, March 16, 2007, 518 SCRA 473), he insists that the COMELEC should provide
a reasonable procedure in view of a vital threshold issue of "whether the ballots found in
the ballot boxes during the revision proceedings were the same ballots that were cast
and counted in the elections;" and that the assailed issuances totally overhauled,
amended, and altered the final and executory ruling of January 12, 2009 that deferred
any revision proceedings until all the protested ballot boxes were all in the custody of
the COMELEC.

De Castro submits that the obstinate refusal of the Division to issue an order setting
forth the ground rules for the per case revision of ballots was an omission exemplifying
a grave abuse of discretion and a denial of his substantive and procedural right to due
process; that the caption of the orders dated May 25, 2009 and June 2, 2009 show that
the three protest cases were consolidated, but the Division still chose to conduct the
revision piecemeal starting with the position of Mayor, then of Vice Mayor, and finally of
City Councilors, separately as provided in the June 2, 2009 order.27

The private respondents counter through their Consolidated Joint Comment filed on
September 8, 200928 that Rosal does not mention any requirement for the suspension of
revision of ballots or for the stoppage of the opening of a ballot box in a revision
proceeding; that the set-aside ballot boxes should be opened; that a full determination
of the "integrity of the ballot boxes and their contents" could be made only if the status
and condition of the contents were also considered; that the disallowance of the
opening of the set-aside ballot boxes pre-empted the parties rights to examine, present
and argue upon the condition of the ballot boxes and their contents; that the COMELEC
could not be bound to maintain a strict adherence to its January 12, 2009 order because
the SET had already allowed the revision to be conducted within its premises; and that
the COMELEC had issued sufficient and adequate rules of procedure for the revision of
the questioned ballots, for, as mandated in the June 2, 2009 order, the normal
procedure of revision would be followed, implying that the procedure in previous
revision of ballots be maintained.

Ruling

The petitions have no merit.

G.R. No. 187958 and Nos. 187961-62

At the outset, the Court holds that the order of revision and the revision of ballots
synchronized with that of the SET were proper. The reasons for this holding follow.

First: In regular election contests, the general averment of fraud or irregularities in the
counting of votes justifies the examination of the ballots and recounting of votes. This
process of examination is the revision of the ballots pursuant to Section 6, Rule 20 of
the 1993 COMELEC Rules of Procedure, to wit:

Section 6. Revision of Ballots. When the allegations in a protest or counter-protest so

warrant, or whenever in the opinion of the Commission or Division the interest of justice
so demands, it shall immediately order the ballot boxes containing ballots and their
keys, list of voters with voting records, book of voters, and other documents used in the
election to be brought before the Commission, and shall order the revision of the ballots.
The protests involved herein assailed the authenticity of the election returns and the
veracity of the counting of the ballots. 29 In that regard, the ballots themselves are the
best evidence, for, as stated in Miguel v. Commission on Elections: 30

The rule in this jurisdiction is clear and jurisprudence is even clearer. In a string of
categorical pronouncements, we have consistently ruled that when there is an allegation
in an election protest that would require the perusal, examination or counting of ballots
as evidence, it is the ministerial duty of the trial court to order the opening of the ballot
boxes and the examination and counting of ballots deposited therein.

The only means to overcome the presumption of legitimacy of the election returns is to
examine and determine first whether the ballot boxes have been substantially preserved
in the manner mandated by law. Hence, the necessity to issue the order of revision.

Second: The synchronized revision of ballots by the SET and the Division is allowed
under Section 3 of COMELEC Resolution No. 2812, which provides:

Section 3. The Tribunals, the Commission and the Courts shall coordinate and make
arrangement with each other so as not to delay or interrupt the revision of ballots being
conducted. The synchronization of revision of ballots shall be such that the expeditious
disposition of the respective protest cases shall be the primary concern.

According to Mendoza v. Commission on Elections,31 the COMELEC does not lose

jurisdiction over the provincial election contest by reason of the transmittal of the
provincial ballot boxes and other election materials to the SET, because its jurisdiction
over provincial election contest exists side by side with the jurisdiction of the SET, with
each tribunal being supreme in its respective areas of concern, with neither being higher
than the other in terms of precedence; hence, the jurisdiction of one must yield to the
other.

In the proper exercise of its jurisdiction, therefore, the Division, mindful of the need for
the expeditious disposition of the cases, formally requested the SET to permit the
revision of the 44 ballot boxes within its premises. The Division made this request
although it had suspended the revision proceedings through a previous order on
account of the then incomplete number of ballot boxes in ECADs custody. In this
connection, the contention that the Divisions suspension order became immutable
cannot be upheld; such an order, being essentially interlocutory in character, could not
attain finality. An interlocutory order is one that resolves an incidental or collateral matter
without putting an end to the case, and for that reason does not become final and
immutable upon the expiration of the period prescribed for taking an appeal from a
judgment or final order.32
It is clear that by its suspension order the Division only adopted an auxiliary means
necessary to carry its jurisdiction into effect. In that light, we should find that there was
no irregularity in the Divisions lifting of the suspension, for, after all, nothing prohibited
the COMELEC from undertaking the appreciation of ballots in tandem with the SETs
own revision of ballots for the senatorial electoral protest.

Third: Under Section 11, Rule 20 of the COMELEC Rules of Procedure, 33 one of the
most indispensable informations that should appear in the revision report relates to the
conditions of the ballot boxes. The importance of this information cannot be
understated. According to Rosal v. Commission on Elections, 34 "the integrity of the
ballots and therefore their probative value, as evidence of the voters will, are contingent
on the integrity of the ballot boxes in which they were stored." This was precisely what
Tolentino was asking the Division to do before the order of revision issued.

Yet, the Court rejects Tolentinos urging for obvious reasons. Any defects in the security
locks or seals of the set-aside ballot boxes, as predetermined by the examining Election
Officer, could not yet satisfy the requirement of the rule. For one, the COMELEC was
not bound by the report simply because the defects still needed to be confirmed during
the process of actual revision. Moreover, the presumption that the ballots reflected the
intent of the voters, as expressly recognized in Section 6(c)(2), Rule 13 of A.M. No. 07-
4-15- SC,35 should not be done away with solely on the basis of the report of the City
Election Officer, by which said officer complied with a requirement set primarily for the
transmittal of the ballot boxes involved. Rosal, which A.M. No. 07-4-15-
SC complements, demands more than such a report in order to overcome the
presumption. More than such report, there should be a full blown trial in which all the
parties concerned should be allowed the opportunity to present their own evidence, to
raise their objections, and to pose their claims before reaching a finding of ballot box
tampering. Rosal clearly mandates so, viz:

Under the circumstances, the question as to who between the parties was duly elected
to the office of mayor cannot be settled without further proceedings in the Comelec. In
keeping with the precepts laid down in this decision, the Comelec must first ascertain,
after due hearing, whether it has before it the same ballots cast and counted in the
elections. For this purpose, it must determine: (1) which ballot boxes sufficiently
retained their integrity as to justify the conclusion that the ballots contained therein could
be relied on as better evidence than the election returns and (2) which ballot boxes
were in such a condition as would afford a reasonable opportunity for unauthorized
persons to gain unlawful access to their contents. In the latter case, the ballots must be
held to have lost all probative value and cannot be used to set aside the official count
reflected in the election returns.36
Consequently, no ruling could be handed down against the integrity of the ballot boxes
that would effectively render naught the evidentiary value of the ballots they contained
unless a full blown trial on the merits was first conducted. Tolentino should accept the
legal impossibility for the Division to rule on the issue of inclusion or exclusion of the
set-aside ballot boxes except after the revision process.

In Rosal, we set the doctrinal guidelines in settling the issue in an election protest of
who among the parties was the real choice of the electorate, thus:

We summarize the foregoing doctrines: (1) the ballots cannot be used to overturn the
official count as reflected in the election returns unless it is first shown affirmatively that
the ballots have been preserved with a care which precludes the opportunity of
tampering and all suspicion of change, abstraction or substitution; (2) the burden of
proving that the integrity of the ballots has been preserved in such a manner is on the
protestant; (3) where a mode of preserving the ballots is enjoined by law, proof must be
made of such substantial compliance with the requirements of that mode as would
provide assurance that the ballots have been kept inviolate notwithstanding slight
deviations from the precise mode of achieving that end; (4) it is only when the protestant
has shown substantial compliance with the provisions of law on the preservation of
ballots that the burden of proving actual tampering or the likelihood thereof shifts to the
protestee and (5) only if it appears to the satisfaction of the court or Comelec that the
integrity of the ballots has been preserved should it adopt the result as shown by the
recount and not as reflected in the election returns. 37

The foregoing guidelines were inapplicable, however, considering that the proceedings
were still in the hearing stage. This explains why the Division deemed the determination
of the physical conditions of the ballot boxes as a necessary measure for its final
determination of whether or not to give probative value to the ballots contained in the
set-aside ballot boxes. The Division had still to reach the deliberative stage of the
protests, when it would decide based on the evidence presented during trial. Before
then, deciding on the propriety of relying on the results of the revision of ballots instead
of the election returns did not yet arise.

Rosal does not forbid the revision of the set-aside ballots. What it proscribes is the blind
adherence to the result of the recount without taking into consideration the proof of any
likelihood that the integrity of the ballot boxes was compromised. It forbids the
COMELEC from conducting "a fresh appreciation of the contested ballots without first
ascertaining whether the ballots to be recounted had been kept inviolate." 38 Tolentino
should understand that election contests would not end with the result of the revision;
and that the revision reports, being evidentiary, should still be scrutinized like any other
evidence presented before the Division. Verily, the revision was not an end in itself, but
simply demarcated the beginning of the process of determining the true result of the
election.

Fourth: The supplemental arguments of Tolentino allege a violation of his right to due
process by the non-observance of the cardinal rules of due process in administrative
adjudications and by the piece-meal resolution of the pending incidents.

In Ang Tibay v. Court of Industrial Relations, 39 the Court enunciated the cardinal rules
for procedural due process in administrative or quasi-judicial tribunal, to wit:

1. The right to a hearing, which includes the right to present ones case and
submit evidence in support thereof;

2. The tribunal must consider the evidence presented;

3. The decision must have something to support itself;

4. The evidence must be substantial. Substantial evidence is such reasonable

evidence as a reasonable mind might accept as adequate to support a
conclusion;

5. The decision must be based on the evidence presented at the hearing, or at

least contained in the record and disclosed to the parties affected;

6. The tribunal or body or any of its judges must act on its or his own
independent consideration of the law and facts of the controversy, and not simply
accept the views of a subordinate; and

7. The tribunal or body should render its decision in such manner that the parties
to the proceeding can know the various issues involved and the reason for the
decision rendered.

The Ang Tibay formulation was overlapping and repetitious. Hence, in Air Manila, Inc. v.
Balatbat,40 the formulation was simplified into four basic rights, as follows:

1. The right to notice, be it actual or constructive, of the institution of the

proceedings that may affect a persons legal right;

2. The right to a reasonable opportunity to appear and defend his rights and to
introduce witnesses and relevant evidence in his favor;
 3. The right to a tribunal so constituted as to give him reasonable assurance of
honesty and impartiality, and one of competent jurisdiction; and

4. The right to a finding or decision of that tribunal supported by substantial

evidence presented at the hearing or at least ascertained in the records or
disclosed to the parties.

Gauged upon the foregoing guidelines, Tolentinos gripe was unwarranted. He was not
denied procedural due process. The Division had required him to provide the names of
his revisors whose tasks included the raising of objections, the claiming votes for him, or
the contesting of the votes in favor of his opponent. He has neither alleged being
deprived of this opportunity, nor indicated any situation in which his revisors were
denied access to the revision proceedings. He could not also insist that the COMELEC
did not consider his legal and factual arguments; besides, he could still raise them in his
memorandum should he chose to. During the revision stage, he should raise all
objections, present his evidence and witnesses, and file his memorandum before the
case would be submitted for resolution. Such manner of presenting his side would fully
meet the demands of due process, for, as the Court has explained the nature of due
process in Stayfast Philippines Corporation v. National Labor Relations Commission: 41

The essence of due process is simply the opportunity to be heard, or as applied to

administrative proceedings, an opportunity to explain ones side or an opportunity to
seek a reconsideration of the action or ruling complained of.

A formal or trial-type hearing is not at all times and in all instances essential. The
requirements are satisfied where the parties are afforded fair and reasonable
opportunity to explain their side of the controversy at hand. What is frowned upon is
absolute lack of notice and hearing. xxx

A review of the records proves that the parties, including Tolentino, were afforded ample
opportunity to ventilate their respective claims, to raise their objections, to claim votes,
and to contest the votes of their opponents through their duly designated revisors.

G.R. Nos. 187966-68

Contrary to De Castros submission, the Division set the ground rule for the revision of
the contested ballots by laying down the procedure for the simultaneous revision of the
contested ballots for all the three election protests.

Paragraph 5 of the January 6, 2009 order distinctly stated that "the revision of ballots in
the above-entitled cases be conducted in such a way that when a ballot box is opened,
its contents shall be revised in all three (3) cases before proceeding to the next ballot
box considering that the same precincts are contested in all three (3) cases." 42 That
procedure was ideal under the obtaining circumstances, given that the same precincts
were involved in all the three cases. Also, the procedure was the practical and most
expeditious manner of recording the observations in the minutes of the proceedings, the
segregation according to vote per candidate, and the validation and registration of all
objections or contests on the votes and claims on the same. All objections and claims of
each partys revisors would later on be collated on a "per case" basis and submitted to
the Chairperson of each Revision Committee to aid in the preparation of the revision
report for the precincts or clusters of precincts assigned to such committee.

We find no incompatibility between the order of January 6, 2009 and the order of June
2, 2009. The latter order provided that the "Revision Committees will conduct the
revision of the forty-four (44) contested ballots now in the custody of the Senate
Electoral Tribunal, per case and not simultaneously. The normal procedure of revision
shall be followed."43 The purpose of the latter order was to preserve the distinction of
each position, that is, by keeping the data for each of the positions separate despite the
process of data-gathering being done simultaneously for all three positions.

It is noted that the three cases involved 44 ballot boxes in the custody of the SET and
72 ballot boxes in the custody of the COMELEC, all concerning the several elective
positions. The task of the four Revision Committees entailed the preparation of per-
precinct revision reports for each of the three positions, the number of which would
depend on how many precincts or clusters of precincts were assigned to the
committees. The only logical solution to the need for systematic proceedings was to do
the revisions on a per-case or per-position approach, closing the ballot box only after all
the data required, and the objections and claims relevant to each position had already
been recorded. Such a procedure would become significant especially during the stage
of the segregation of the votes per candidate, at which time the votes for each
candidate would be given to the opponents revisors who would then validate the
ballots, or register objections, or claim votes for the candidates they represented, or
contest the votes of their principals opponents.

In an election protest, the electoral tribunal has an imperative duty to promptly ascertain
by all means within its command the candidates the electorate have chosen. It bears
stressing that in the exercise of the plenitude of its powers to protect the integrity of the
elections, the COMELEC should not and must not be straitjacketed by procedural rules
in resolving election disputes.44 Thus, the Divisions adoption of measures that
especially respond to or address unique situations, like these cases, was incidental to
the COMELECs general authority to adopt all the means to effect its powers and
exercise its jurisdiction. Such adoption is even warranted under Section 4 of the
COMELEC Rules of Procedure:

Section 4. Means to Effect Jurisdiction. All auxiliary writs, processes and other means
necessary to carry into effect its powers or jurisdiction may be employed by the
Commission; and if the procedure to be followed in the exercise of such power or
jurisdiction is not specifically provided for by law or these rules, any suitable process or
proceeding may be adopted.

The nature of election protests cases often makes the COMELEC face varied situations
calling for the exercise of its general authority to adopt means necessary to effect its
powers and jurisdiction. The COMELEC, in its performance of its duties, must be given
a considerable latitude in adopting means and methods that would insure the
accomplishment of the great objective for which it was created to promote free,
orderly, and honest elections. The choice of the means by the COMELEC should not be
interfered with, unless the means were clearly illegal or the choice constituted grave
abuse of discretion.45 To require a more stringent rule would unduly handicap the
COMELEC in the achievement of its mandate to expeditiously dispose of election
contests. Hence, a liberal construction of its rules should be conceded to the
COMELEC, for, as already held:

It has been frequently decided, and it may be stated as a general rule recognized by all
courts, that statutes providing for election contests are to be liberally construed to the
end that the will of the people in the choice of public officers may not be defeated by
mere technical objections. An election contest, unlike an ordinary action, is imbued with
public interest since it involves not only the adjudication of the private interests of rival
candidates but also the paramount need of dispelling the uncertainty which beclouds
the real choice of the electorate with respect to who shall discharge the prerogatives of
the office within their gift. Moreover, it is neither fair nor just to keep in office for an
uncertain period one whose right to it is under suspicion. It is imperative that his claim
be immediately cleared not only for the benefit of the winner but for the sake of public
interest, which can only be achieved by brushing aside technicalities of procedure which
protract and delay the trial of an ordinary action. xxx. 46

Moreover, the pleadings of Tolentino even showed that the ground rules and guidelines
for the revision of ballots were issued to the parties a day before the revision
proceedings.47 Thus, neither petitioner could validly complain about not having been
duly informed of the manner of revision, in light of the directive contained in paragraph 4
of the January 6, 2009 order that the parties should be briefed on the ground rules for
the revision of ballots before the commencement of the revision. 48
In fine, the Division did not commit any abuse of discretion, least of all grave, in its
issuance of the assailed orders. Its actuations relative to the conduct of the revision
proceedings in the three election protests were far from capricious or whimsical. The
Division issued ground rules with sufficient notice to the parties, who were thereby
adequately shielded from partiality or unfairness during the process of revision. The
Division should instead be commended for carrying out its mandate to expedite the
disposition of the present election controversies.

WHEREFORE, we dismiss the petitions for lack of merit.

The Second Division of the Commission on Elections is directed to proceed with

dispatch on the revision of ballots in EPC Case No. 2007-07, EPC Case No. 2007-08,
and EPC Case No. 2007-09, and to resolve the election protests as soon as practicable.

This decision is immediately executory.

Costs of suit to be paid by the petitioners.

SO ORDERED.

G.R. No. 191002 April 20, 2010

ARTURO M. DE CASTRO, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL -
ARROYO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 191032

JAIME N. SORIANO, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 191057

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

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

IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO

APPOINTMENTS TO THE JUDICIARY, ESTELITO P. MENDOZA, Petitioner,

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 191149

JOHN G. PERALTA, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.;
NATIONAL UNION OF PEOPLES LAWYERS; MARLOU B. UBANO; INTEGRATED
BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its
Immediate Past President, ATTY. ISRAELITO P. TORREON, and the latter in his
own personal capacity as a MEMBER of the PHILIPPINE BAR; MITCHELL JOHN L.
BOISER; BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P.
ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES, JR.;
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT OF
GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE;
KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL
GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN NG
SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN LEONARD
RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE OF FILIPINO
STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY LACUANAN RIDON;
NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP) CHAIRMAN
EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP)
CHAIRMAN VIJAE ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF THE
PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA; WALDEN
F. BELLO and LORETTA ANN P. ROSALES; WOMEN TRIAL LAWYERS
ORGANIZATION OF THE PHILIPPINES, represented by YOLANDA QUISUMBING-
JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN;
MA. VERENA KASILAG-VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE
JESUS; and GUINEVERE DE LEON; AQUILINO Q. PIMENTEL, JR.; Intervenors.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 191342

ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY.

ROLAND B. INTING (IBPGovernor-Eastern Visayas), Petitioners,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 191420

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-
ARROYO, Respondents.

RESOLUTION

BERSAMIN, J.:

On March 17, 2010, the Court promulgated its decision, holding:

WHEREFORE, the Court:

1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and
G.R. No. 191149, and the petition for mandamus in G.R. No. 191057 for being
premature;
 2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No.
191342 for lack of merit; and

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

(a) To resume its proceedings for the nomination of candidates to fill the
vacancy to be created by the compulsory retirement of Chief Justice
Reynato S. Puno by May 17, 2010;

(b) To prepare the short list of nominees for the position of Chief Justice;

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

(d) To continue its proceedings for the nomination of candidates to fill

other vacancies in the Judiciary and submit to the President the short list
of nominees corresponding thereto in accordance with this decision.

SO ORDERED.

Motions for Reconsideration

Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and Roland B.
Inting (G.R. No. 191342), and Philippine Bar Association (G.R. No. 191420), as well as
intervenors Integrated Bar of the Philippines-Davao del Sur (IBP-Davao del Sur, et al.);
Christian Robert S. Lim; Peter Irving Corvera; Bagong Alyansang Bayan and others
(BAYAN, et al.); Alfonso V. Tan, Jr.; the Women Trial Lawyers Organization of the
Philippines (WTLOP); Marlou B. Ubano; Mitchell John L. Boiser; and Walden F. Bello
and Loretta Ann P. Rosales (Bello, et al.), filed their respective motions for
reconsideration. Also filing a motion for reconsideration was Senator Aquilino Q.
Pimentel, Jr., whose belated intervention was allowed.

We summarize the arguments and submissions of the various motions for

reconsideration, in the aforegiven order:

Soriano

1. The Court has not squarely ruled upon or addressed the issue of whether or
not the power to designate the Chief Justice belonged to the Supreme Court en
banc.
 2. The Mendoza petition should have been dismissed, because it sought a mere
declaratory judgment and did not involve a justiciable controversy.

3. All Justices of the Court should participate in the next deliberations. The mere
fact that the Chief Justice sits as ex officio head of the JBC should not prevail
over the more compelling state interest for him to participate as a Member of the
Court.

Tolentino and Inting

1. A plain reading of Section 15, Article VII does not lead to an interpretation that
exempts judicial appointments from the express ban on midnight appointments.

2. In excluding the Judiciary from the ban, the Court has made distinctions and
has created exemptions when none exists.

3. The ban on midnight appointments is placed in Article VII, not in Article VIII,
because it limits an executive, not a judicial, power.

4. Resort to the deliberations of the Constitutional Commission is superfluous,

and is powerless to vary the terms of the clear prohibition.

5. The Court has given too much credit to the position taken by Justice
Regalado. Thereby, the Court has raised the Constitution to the level of a
venerated text whose intent can only be divined by its framers as to be outside
the realm of understanding by the sovereign people that ratified it.

6. Valenzuela should not be reversed.

7. The petitioners, as taxpayers and lawyers, have the clear legal standing to
question the illegal composition of the JBC.

Philippine Bar Association

1. The Courts strained interpretation of the Constitution violates the basic

principle that the Court should not formulate a rule of constitutional law broader
than what is required by the precise facts of the case.

2. Considering that Section 15, Article VII is clear and straightforward, the only
duty of the Court is to apply it. The provision expressly and clearly provides a
general limitation on the appointing power of the President in prohibiting the
appointment of any person to any position in the Government without any
qualification and distinction.

3. The Court gravely erred in unilaterally ignoring the constitutional safeguard

against midnight appointments.

4. The Constitution has installed two constitutional safeguards:- the prohibition

against midnight appointments, and the creation of the JBC. It is not within the
authority of the Court to prefer one over the other, for the Courts duty is to apply
the safeguards as they are, not as the Court likes them to be.

5. The Court has erred in failing to apply the basic principles of statutory
construction in interpreting the Constitution.

6. The 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 weight.

7. The Constitution has provided a general rule on midnight appointments, and

the only exception is that on temporary appointments to executive positions.

8. The Court has erred in directing the JBC to resume the proceedings for the
nomination of the candidates to fill the vacancy to be created by the compulsory
retirement of Chief Justice Puno with a view to submitting the list of nominees for
Chief Justice to President Arroyo on or before May 17, 2010. The Constitution
grants the Court only the power of supervision over the JBC; hence, the Court
cannot tell the JBC what to do, how to do it, or when to do it, especially in the
absence of a real and justiciable case assailing any specific action or inaction of
the JBC.

9. The Court has engaged in rendering an advisory opinion and has indulged in
speculations.

10. The constitutional ban on appointments being already in effect, the Courts
directing the JBC to comply with the decision constitutes a culpable violation of
the Constitution and the commission of an election offense.

11. The Court cannot reverse on the basis of a secondary authority a doctrine
unanimously formulated by the Court en banc.
 12. The practice has been for the most senior Justice to act as Chief Justice
whenever the incumbent is indisposed. Thus, the appointment of the successor
Chief Justice is not urgently necessary.

13. The principal purpose for the ban on midnight appointments is to arrest any
attempt to prolong the outgoing Presidents powers by means of proxies. The
attempt of the incumbent President to appoint the next Chief Justice is
undeniably intended to perpetuate her power beyond her term of office.

IBP-Davao del Sur, et al.

1. Its language being unambiguous, Section 15, Article VII of the Constitution
applies to appointments to the Judiciary. Hence, no cogent reason exists to
warrant the reversal of the Valenzuela pronouncement.

2. Section 16, Article VII of the Constitution provides for presidential

appointments to the Constitutional Commissions and the JBC with the consent of
the Commission on Appointments. Its phrase "other officers whose appointments
are vested in him in this Constitution" is enough proof that the limitation on the
appointing power of the President extends to appointments to the Judiciary.
Thus, Section 14, Section 15, and Section 16 of Article VII apply to all
presidential appointments in the Executive and Judicial Branches of the
Government.

3. There is no evidence that the framers of the Constitution abhorred the idea of
an Acting Chief Justice in all cases.

Lim

1. There is no justiciable controversy that warrants the Courts exercise of judicial

review.

2. The election ban under Section 15, Article VII applies to appointments to fill a
vacancy in the Court and to other appointments to the Judiciary.

3. The creation of the JBC does not justify the removal of the safeguard under
Section 15 of Article VII against midnight appointments in the Judiciary.

Corvera
 1. The Courts exclusion of appointments to the Judiciary from the Constitutional
ban on midnight appointments is based on an interpretation beyond the plain and
unequivocal language of the Constitution.

2. The intent of the ban on midnight appointments is to cover appointments in

both the Executive and Judicial Departments. The application of the principle of
verba legis (ordinary meaning) would have obviated dwelling on the organization
and arrangement of the provisions of the Constitution. If there is any ambiguity in
Section 15, Article VII, the intent behind the provision, which is to prevent political
partisanship in all branches of the Government, should have controlled.

3. A plain reading is preferred to a contorted and strained interpretation based on

compartmentalization and physical arrangement, especially considering that the
Constitution must be interpreted as a whole.

4. Resort to the deliberations or to the personal interpretation of the framers of

the Constitution should yield to the plain and unequivocal language of the
Constitution.

5. There is no sufficient reason for reversing Valenzuela, a ruling that is

reasonable and in accord with the Constitution.

BAYAN, et al.

1. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the
petition did not present a justiciable controversy. The issues it raised were not yet
ripe for adjudication, considering that the office of the Chief Justice was not yet
vacant and that the JBC itself has yet to decide whether or not to submit a list of
nominees to the President.

2. The collective wisdom of Valenzuela Court is more important and compelling

than the opinion of Justice Regalado.

3. In ruling that Section 15, Article VII is in conflict with Section 4(1), Article VIII,
the Court has violated the principle of ut magis valeat quam pereat (which
mandates that the Constitution should be interpreted as a whole, such that any
conflicting provisions are to be harmonized as to fully give effect to all). There is
no conflict between the provisions; they complement each other.

4. The form and structure of the Constitutions titles, chapters, sections, and
draftsmanship carry little weight in statutory construction. The clear and plain
language of Section 15, Article VII precludes interpretation.
Tan, Jr.

1. The factual antecedents do not present an actual case or controversy. The

clash of legal rights and interests in the present case are merely anticipated.
Even if it is anticipated with certainty, no actual vacancy in the position of the
Chief Justice has yet occurred.

2. The ruling that Section 15, Article VII does not apply to a vacancy in the Court
and the Judiciary runs in conflict with long standing principles and doctrines of
statutory construction. The provision admits only one exception, temporary
appointments in the Executive Department. Thus, the Court should not
distinguish, because the law itself makes no distinction.

3. Valenzuela was erroneously reversed. The framers of the Constitution clearly

intended the ban on midnight appointments to cover the members of the
Judiciary. Hence, giving more weight to the opinion of Justice Regalado to
reverse the en banc decision in Valenzuela was unwarranted.

4. Section 15, Article VII is not incompatible with Section 4(1), Article VIII. The 90-
day mandate to fill any vacancy lasts until August 15, 2010, or a month and a half
after the end of the ban. The next President has roughly the same time of 45
days as the incumbent President (i.e., 44 days) within which to scrutinize and
study the qualifications of the next Chief Justice. Thus, the JBC has more than
enough opportunity to examine the nominees without haste and political
uncertainty.1avvphi1

5. When the constitutional ban is in place, the 90-day period under Section 4(1),
Article VIII is suspended.

6. There is no basis to direct the JBC to submit the list of nominees on or before
May 17, 2010. The directive to the JBC sanctions a culpable violation of the
Constitution and constitutes an election offense.

7. There is no pressing necessity for the appointment of a Chief Justice, because

the Court sits en banc, even when it acts as the sole judge of all contests relative
to the election, returns and qualifications of the President and Vice-President.
Fourteen other Members of the Court can validly comprise the Presidential
Electoral Tribunal.

WTLOP
 1. The Court exceeded its jurisdiction in ordering the JBC to submit the list of
nominees for Chief Justice to the President on or before May 17, 2010, and to
continue its proceedings for the nomination of the candidates, because it granted
a relief not prayed for; imposed on the JBC a deadline not provided by law or the
Constitution; exercised control instead of mere supervision over the JBC; and
lacked sufficient votes to reverse Valenzuela.

2. In interpreting Section 15, Article VII, the Court has ignored the basic principle
of statutory construction to the effect that the literal meaning of the law must be
applied when it is clear and unambiguous; and that we should not distinguish
where the law does not distinguish.

3. There is no urgency to appoint the next Chief Justice, considering that the
Judiciary Act of 1948 already provides that the power and duties of the office
devolve on the most senior Associate Justice in case of a vacancy in the office of
the Chief Justice.

Ubano

1. The language of Section 15, Article VII, being clear and unequivocal, needs no
interpretation

2. The Constitution must be construed in its entirety, not by resort to the

organization and arrangement of its provisions.

3. The opinion of Justice Regalado is irrelevant, because Section 15, Article VII
and the pertinent records of the Constitutional Commission are clear and
unambiguous.

4. The Court has erred in ordering the JBC to submit the list of nominees to the
President by May 17, 2010 at the latest, because no specific law requires the
JBC to submit the list of nominees even before the vacancy has occurred.

Boiser

1. Under Section 15, Article VII, the only exemption from the ban on midnight
appointments is the temporary appointment to an executive position. The
limitation is in keeping with the clear intent of the framers of the Constitution to
place a restriction on the power of the outgoing Chief Executive to make
appointments.
 2. To exempt the appointment of the next Chief Justice from the ban on midnight
appointments makes the appointee beholden to the outgoing Chief Executive,
and compromises the independence of the Chief Justice by having the outgoing
President be continually influential.

3. The Courts reversal of Valenzuela without stating the sufficient reason violates
the principle of stare decisis.

Bello, et al.

1. Section 15, Article VII does not distinguish as to the type of appointments an
outgoing President is prohibited from making within the prescribed period. Plain
textual reading and the records of the Constitutional Commission support the
view that the ban on midnight appointments extends to judicial appointments.

2. Supervision of the JBC by the Court involves oversight. The subordinate

subject to oversight must first act not in accord with prescribed rules before the
act can be redone to conform to the prescribed rules.

3. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the
petition did not present a justiciable controversy.

Pimentel

1. Any constitutional interpretative changes must be reasonable, rational, and

conformable to the general intent of the Constitution as a limitation to the powers
of Government and as a bastion for the protection of the rights of the people.
Thus, in harmonizing seemingly conflicting provisions of the Constitution, the
interpretation should always be one that protects the citizenry from an ever
expanding grant of authority to its representatives.

2. The decision expands the constitutional powers of the President in a manner

totally repugnant to republican constitutional democracy, and is tantamount to a
judicial amendment of the Constitution without proper authority.

Comments

The Office of the Solicitor General (OSG) and the JBC separately represent in their
respective comments, thus:

OSG
 1. The JBC may be compelled to submit to the President a short list of its
nominees for the position of Chief Justice.

2. The incumbent President has the power to appoint the next Chief Justice.

3. Section 15, Article VII does not apply to the Judiciary.

4. The principles of constitutional construction favor the exemption of the

Judiciary from the ban on midnight appointments.1awph!1

5. The Court has the duty to consider and resolve all issues raised by the parties
as well as other related matters.

JBC

1. The consolidated petitions should have been dismissed for prematurity,

because the JBC has not yet decided at the time the petitions were filed whether
the incumbent President has the power to appoint the new Chief Justice, and
because the JBC, having yet to interview the candidates, has not submitted a
short list to the President.

2. The statement in the decision that there is a doubt on whether a JBC short list
is necessary for the President to appoint a Chief Justice should be struck down
as bereft of constitutional and legal basis. The statement undermines the
independence of the JBC.

3. The JBC will abide by the final decision of the Court, but in accord with its
constitutional mandate and its implementing rules and regulations.

For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his comment
even if the OSG and the JBC were the only ones the Court has required to do so. He
states that the motions for reconsideration were directed at the administrative matter he
initiated and which the Court resolved. His comment asserts:

1. The grounds of the motions for reconsideration were already resolved by the
decision and the separate opinion.

2. The administrative matter he brought invoked the Courts power of supervision

over the JBC as provided by Section 8(1), Article VIII of the Constitution, as
distinguished from the Courts adjudicatory power under Section 1, Article VIII. In
the former, the requisites for judicial review are not required, which was
why Valenzuela was docketed as an administrative matter. Considering that the
 JBC itself has yet to take a position on when to submit the short list to the proper
appointing authority, it has effectively solicited the exercise by the Court of its
power of supervision over the JBC.

3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article VIII is to
amend the Constitution.

4. The portions of the deliberations of the Constitutional Commission quoted in

the dissent of Justice Carpio Morales, as well as in some of the motions for
reconsideration do not refer to either Section 15, Article VII or Section 4(1),
Article VIII, but to Section 13, Article VII (on nepotism).

Ruling

We deny the motions for reconsideration for lack of merit, for all the matters being
thereby raised and argued, not being new, have all been resolved by the decision of
March 17, 2010.

Nonetheless, the Court opts to dwell on some matters only for the purpose of
clarification and emphasis.

First: Most of the movants contend that the principle of stare decisis is controlling, and
accordingly insist that the Court has erred in disobeying or abandoning Valenzuela. 1

The contention has no basis.

Stare decisis derives its name from the Latin maxim stare decisis et non quieta movere,
i.e., to adhere to precedent and not to unsettle things that are settled. It simply means
that a principle underlying the decision in one case is deemed of imperative authority,
controlling the decisions of like cases in the same court and in lower courts within the
same jurisdiction, unless and until the decision in question is reversed or overruled by a
court of competent authority. The decisions relied upon as precedents are commonly
those of appellate courts, because the decisions of the trial courts may be appealed to
higher courts and for that reason are probably not the best evidence of the rules of law
laid down. 2

Judicial decisions assume the same authority as a statute itself and, until authoritatively
abandoned, necessarily become, to the extent that they are applicable, the criteria that
must control the actuations, not only of those called upon to abide by them, but also of
those duty-bound to enforce obedience to them. 3 In a hierarchical judicial system like
ours, the decisions of the higher courts bind the lower courts, but the courts of co-
ordinate authority do not bind each other. The one highest court does not bind itself,
being invested with the innate authority to rule according to its best lights. 4

The Court, as the highest court of the land, may be guided but is not controlled by
precedent. Thus, the Court, especially with a new membership, is not obliged to follow
blindly a particular decision that it determines, after re-examination, to call for a
rectification.5 The adherence to precedents is strict and rigid in a common-law setting
like the United Kingdom, where judges make law as binding as an Act of
Parliament.6 But ours is not a common-law system; hence, judicial precedents are not
always strictly and rigidly followed. A judicial pronouncement in an earlier decision may
be followed as a precedent in a subsequent case only when its reasoning and
justification are relevant, and the court in the latter case accepts such reasoning and
justification to be applicable to the case. The application of the precedent is for the sake
of convenience and stability.

For the intervenors to insist that Valenzuela ought not to be disobeyed, or abandoned,
or reversed, and that its wisdom should guide, if not control, the Court in this case is,
therefore, devoid of rationality and foundation. They seem to conveniently forget that the
Constitution itself recognizes the innate authority of the Court en banc to modify or
reverse a doctrine or principle of law laid down in any decision rendered en banc or in
division.7

Second: Some intervenors are grossly misleading the public by their insistence that the
Constitutional Commission extended to the Judiciary the ban on presidential
appointments during the period stated in Section 15, Article VII.

The deliberations that the dissent of Justice Carpio Morales quoted from the records of
the Constitutional Commission did not concern either Section 15, Article VII or Section
4(1), Article VIII, but only Section 13, Article VII, a provision on nepotism. The records of
the Constitutional Commission show that Commissioner Hilario G. Davide, Jr. had
proposed to include judges and justices related to the President within the fourth civil
degree of consanguinity or affinity among the persons whom the President might not
appoint during his or her tenure. In the end, however, Commissioner Davide, Jr.
withdrew the proposal to include the Judiciary in Section 13, Article VII "(t)o avoid any
further complication,"8 such that the final version of the second paragraph of Section 13,
Article VII even completely omits any reference to the Judiciary, to wit:

Section 13. xxx

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the
President shall not during his tenure be appointed as Members of the Constitutional
Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including government-owned or controlled
corporations and their subsidiaries.

Last: The movants take the majority to task for holding that Section 15, Article VII does
not apply to appointments in the Judiciary. They aver that the Court either ignored or
refused to apply many principles of statutory construction.

The movants gravely err in their posture, and are themselves apparently contravening
their avowed reliance on the principles of statutory construction.

For one, the movants, disregarding the absence from Section 15, Article VII of the
express extension of the ban on appointments to the Judiciary, insist that the ban
applied to the Judiciary under the principle of verba legis. That is self-contradiction at its
worst.

Another instance is the movants unhesitating willingness to read into Section 4(1) and
Section 9, both of Article VIII, the express applicability of the ban under Section 15,
Article VII during the period provided therein, despite the silence of said provisions
thereon. Yet, construction cannot supply the omission, for doing so would generally
constitute an encroachment upon the field of the Constitutional Commission. Rather,
Section 4(1) and Section 9 should be left as they are, given that their meaning is clear
and explicit, and no words can be interpolated in them. 9Interpolation of words is
unnecessary, because the law is more than likely to fail to express the legislative intent
with the interpolation. In other words, the addition of new words may alter the thought
intended to be conveyed. And, even where the meaning of the law is clear and sensible,
either with or without the omitted word or words, interpolation is improper, because the
primary source of the legislative intent is in the language of the law itself. 10

Thus, the decision of March 17, 2010 has fittingly observed:

Had the framers intended to extend the prohibition contained in Section 15, Article VII to
the appointment of Members of the Supreme Court, they could have explicitly done so.
They could not have ignored the meticulous ordering of the provisions. They would have
easily and surely written the prohibition made explicit in Section 15, Article VII as being
equally applicable to the appointment of Members of the Supreme Court in Article VIII
itself, most likely in Section 4 (1), Article VIII. That such specification was not done only
reveals that the prohibition against the President or Acting President making
appointments within two months before the next presidential elections and up to the end
of the Presidents or Acting Presidents term does not refer to the Members of the
Supreme Court.
We cannot permit the meaning of the Constitution to be stretched to any unintended
point in order to suit the purposes of any quarter.

Final Word

It has been insinuated as part of the polemics attendant to the controversy we are
resolving that because all the Members of the present Court were appointed by the
incumbent President, a majority of them are now granting to her the authority to appoint
the successor of the retiring Chief Justice.

The insinuation is misguided and utterly unfair.

The Members of the Court vote on the sole basis of their conscience and the merits of
the issues. Any claim to the contrary proceeds from malice and condescension. Neither
the outgoing President nor the present Members of the Court had arranged the current
situation to happen and to evolve as it has. None of the Members of the Court could
have prevented the Members composing the Court when she assumed the Presidency
about a decade ago from retiring during her prolonged term and tenure, for their
retirements were mandatory. Yet, she is now left with an imperative duty under the
Constitution to fill up the vacancies created by such inexorable retirements within 90
days from their occurrence. Her official duty she must comply with. So must we ours
who are tasked by the Constitution to settle the controversy.

ACCORDINGLY, the motions for reconsideration are denied with finality.

SO ORDERED.
G.R. Nos. 179431-32 June 22, 2010

LUIS K. LOKIN, JR., as the second nominee of CITIZENS BATTLE AGAINST

CORRUPTION (CIBAC),Petitioner,
vs.
COMMISSION ON ELECTIONS and the HOUSE OF
REPRESENTATIVES, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 180443

LUIS K. LOKIN, JR., Petitioner,

vs.
COMMISSION ON ELECTIONS (COMELEC), EMMANUEL JOEL J. VILLANUEVA,
CINCHONA C. GONZALES and ARMI JANE R. BORJE, Respondents.

DECISION

BERSAMIN, J.:

The principal question posed in these consolidated special civil actions for certiorari and
mandamus is whether the Commission on Elections (COMELEC) can issue
implementing rules and regulations (IRRs) that provide a ground for the substitution of a
party-list nominee not written in Republic Act (R.A.) No. 7941, 1 otherwise known as the
Party-List System Act, the law that the COMELEC thereby implements.
Common Antecedents

The Citizens Battle Against Corruption (CIBAC) was one of the organized groups duly
registered under the party-list system of representation that manifested their intent to
participate in the May 14, 2007 synchronized national and local elections. Together with
its manifestation of intent to participate, 2 CIBAC, through its president, Emmanuel Joel
J. Villanueva, submitted a list of five nominees from which its representatives would be
chosen should CIBAC obtain the required number of qualifying votes. The nominees, in
the order that their names appeared in the certificate of nomination dated March 29,
2007,3 were: (1) Emmanuel Joel J. Villanueva; (2) herein petitioner Luis K. Lokin, Jr.; (3)
Cinchona C. Cruz-Gonzales; (4) Sherwin Tugna; and (5) Emil L. Galang. The nominees
certificates of acceptance were attached to the certificate of nomination filed by CIBAC.
The list of nominees was later published in two newspapers of general circulation, The
Philippine Star News4 (sic) and The Philippine Daily Inquirer.5

Prior to the elections, however, CIBAC, still through Villanueva, filed a certificate of
nomination, substitution and amendment of the list of nominees dated May 7,
2007,6 whereby it withdrew the nominations of Lokin, Tugna and Galang and substituted
Armi Jane R. Borje as one of the nominees. The amended list of nominees of CIBAC
thus included: (1) Villanueva, (2) Cruz-Gonzales, and (3) Borje.

Following the close of the polls, or on June 20, 2007, Villanueva sent a letter to
COMELEC Chairperson Benjamin Abalos, 7 transmitting therewith the signed petitions of
more than 81% of the CIBAC members, in order to confirm the withdrawal of the
nomination of Lokin, Tugna and Galang and the substitution of Borje. In their petitions,
the members of CIBAC averred that Lokin and Tugna were not among the nominees
presented and proclaimed by CIBAC in its proclamation rally held in May 2007; and that
Galang had signified his desire to focus on his family life.

On June 26, 2007, CIBAC, supposedly through its counsel, filed with the COMELEC en
banc sitting as the National Board of Canvassers a motion seeking the proclamation of
Lokin as its second nominee.8 The right of CIBAC to a second seat as well as the right
of Lokin to be thus proclaimed were purportedly based on Party-List Canvass Report
No. 26, which showed CIBAC to have garnered a grand total of 744,674 votes. Using all
relevant formulas, the motion asserted that CIBAC was clearly entitled to a second seat
and Lokin to a proclamation.

The motion was opposed by Villanueva and Cruz-Gonzales.

Notwithstanding Villanuevas filing of the certificate of nomination, substitution and

amendment of the list of nominees and the petitions of more than 81% of CIBAC
members, the COMELEC failed to act on the matter, prompting Villanueva to file a
petition to confirm the certificate of nomination, substitution and amendment of the list of
nominees of CIBAC on June 28, 2007.9

On July 6, 2007, the COMELEC issued Resolution No. 8219, 10 whereby it resolved to
set the matter pertaining to the validity of the withdrawal of the nominations of Lokin,
Tugna and Galang and the substitution of Borje for proper disposition and hearing. The
case was docketed as E.M. No. 07-054.

In the meantime, the COMELEC en banc, sitting as the National Board of Canvassers,
issued National Board of Canvassers (NBC) Resolution No. 07-60 dated July 9,
200711 to partially proclaim the following parties, organizations and coalitions
participating under the Party-List System as having won in the May 14, 2007 elections,
namely: Buhay Hayaan Yumabong, Bayan Muna, CIBAC, Gabriela Women's Party,
Association of Philippine Electric Cooperatives, Advocacy for Teacher Empowerment
Through Action, Cooperation and Harmony Towards Educational Reforms, Inc.,
Akbayan! Citizen's Action Party, Alagad, Luzon Farmers Party, Cooperative-Natco
Network Party, Anak Pawis, Alliance of Rural Concerns and Abono; and to defer the
proclamation of the nominees of the parties, organizations and coalitions with pending
disputes until final resolution of their respective cases.

The COMELEC en banc issued another resolution, NBC Resolution No. 07-72 dated
July 18, 2007,12 proclaiming Buhay Hayaan Yumabong as entitled to 2 additional seats
and Bayan Muna, CIBAC, Gabriela Women's Party, and Association of Philippine
Electric Cooperatives to an additional seat each; and holding in abeyance the
proclamation of the nominees of said parties, organizations and coalitions with pending
disputes until the final resolution of their respective cases.

With the formal declaration that CIBAC was entitled to an additional seat, Ricardo de los
Santos, purportedly as secretary general of CIBAC, informed Roberto P. Nazareno,
Secretary General of the House of Representatives, of the promulgation of NBC
Resolution No. 07-72 and requested that Lokin be formally sworn in by Speaker Jose de
Venecia, Jr. to enable him to assume office. Nazareno replied, however, that the request
of Delos Santos could not be granted because COMELEC Law Director Alioden D.
Dalaig had notified him of the pendency of E.M. 07-054.

On September 14, 2007, the COMELEC en banc resolved E.M. No. 07-05413 thuswise:

WHEREFORE, considering the above discussion, the Commission hereby approves the
withdrawal of the nomination of Atty. Luis K. Lokin, Sherwin N. Tugna and Emil Galang
as second, third and fourth nominees respectively and the substitution thereby with Atty.
Cinchona C. Cruz-Gonzales as second nominee and Atty. Armi Jane R. Borje as third
nominee for the party list CIBAC. The new order of CIBAC's nominees therefore shall
be:

1. Emmanuel Joel J. Villanueva

2. Cinchona C. Cruz-Gonzales

3. Armi Jane R. Borje

SO ORDERED.

The COMELEC en banc explained that the actions of Villanueva in his capacity as the
president of CIBAC were presumed to be within the scope of his authority as such; that
the president was charged by Section 1 of Article IV of the CIBAC By-Laws to oversee
and direct the corporate activities, which included the act of submitting the party's
manifestation of intent to participate in the May 14, 2007 elections as well as its
certificate of nominees; that from all indications, Villanueva as the president of CIBAC
had always been provided the leeway to act as the party's representative and that his
actions had always been considered as valid; that the act of withdrawal, although done
without any written Board approval, was accomplished with the Boards acquiescence
or at least understanding; and that the intent of the party should be given paramount
consideration in the selection of the nominees.

As a result, the COMELEC en banc proclaimed Cruz-Gonzales as the official second

nominee of CIBAC.14 Cruz-Gonzales took her oath of office

as a Party-List Representative of CIBAC on September 17, 2007. 15

Precs of the Consolidated Cases

In G.R. No. 179431 and G.R. No. 179432, Lokin seeks through mandamus to compel
respondent COMELEC to proclaim him as the official second nominee of CIBAC.

In G.R. No. 180443, Lokin assails Section 13 of Resolution No. 7804 promulgated on
January 12, 2007;16 and the resolution dated September 14, 2007 issued in E.M. No.
07-054 (approving CIBACs withdrawal of the nominations of Lokin, Tugna and Galang
as CIBACs second, third and fourth nominees, respectively, and the substitution by
Cruz-Gonzales and Borje in their stead, based on the right of CIBAC to change its
nominees under Section 13 of Resolution No. 7804). 17 He alleges that Section 13 of
Resolution No. 7804 expanded Section 8 of R.A. No. 7941. 18the law that the COMELEC
seeks to thereby implement.
In its comment, the COMELEC asserts that a petition for certiorari is an inappropriate
recourse in law due to the proclamation of Cruz-Gonzales as Representative and her
assumption of that office; that Lokins proper recourse was an electoral protest filed in
the House of Representatives Electoral Tribunal (HRET); and that, therefore, the Court
has no jurisdiction over the matter being raised by Lokin.

For its part, CIBAC posits that Lokin is guilty of forum shopping for filing a petition for
mandamus and a petition for certiorari, considering that both petitions ultimately seek to
have him proclaimed as the second nominee of CIBAC.

Issues

The issues are the following:

(a) Whether or not the Court has jurisdiction over the controversy;

(b) Whether or not Lokin is guilty of forum shopping;

(c) Whether or not Section 13 of Resolution No. 7804 is unconstitutional and

violates the Party-List System Act; and

(d) Whether or not the COMELEC committed grave abuse of discretion

amounting to lack or excess of jurisdiction in approving the withdrawal of the
nominees of CIBAC and allowing the amendment of the list of nominees of
CIBAC without any basis in fact or law and after the close of the polls, and in
ruling on matters that were intra-corporate in nature.

Ruling

The petitions are granted.

A
The Court has jurisdiction over the case

The COMELEC posits that once the proclamation of the winning party-list organization
has been done and its nominee has assumed office, any question relating to the
election, returns and qualifications of the candidates to the House of Representatives
falls under the jurisdiction of the HRET pursuant to Section 17, Article VI of the 1987
Constitution. Thus, Lokin should raise the question he poses herein either in an election
protest or in a special civil action for quo warranto in the HRET, not in a special civil
action for certiorari in this Court.
We do not agree.

An election protest proposes to oust the winning candidate from office. It is strictly a
contest between the defeated and the winning candidates, based on the grounds of
electoral frauds and irregularities, to determine who between them has actually obtained
the majority of the legal votes cast and is entitled to hold the office. It can only be filed
by a candidate who has duly filed a certificate of candidacy and has been voted for in
the preceding elections.

A special civil action for quo warranto refers to questions of disloyalty to the State, or of
ineligibility of the winning candidate. The objective of the action is to unseat the
ineligible person from the office, but not to install the petitioner in his place. Any voter
may initiate the action, which is, strictly speaking, not a contest where the parties strive
for supremacy because the petitioner will not be seated even if the respondent may be
unseated.

The controversy involving Lokin is neither an election protest nor an action for quo
warranto, for it concerns a very peculiar situation in which Lokin is seeking to be seated
as the second nominee of CIBAC. Although an election protest may properly be
available to one party-list organization seeking to unseat another party-list organization
to determine which between the defeated and the winning party-list organizations
actually obtained the majority of the legal votes, Lokins case is not one in which a
nominee of a particular party-list organization thereby wants to unseat another nominee
of the same party-list organization. Neither does an action for quo warranto lie,
considering that the case does not involve the ineligibility and disloyalty of Cruz-
Gonzales to the Republic of the Philippines, or some other cause of disqualification for
her.

Lokin has correctly brought this special civil action for certiorari against the COMELEC
to seek the review of the September 14, 2007 resolution of the COMELEC in
accordance with Section 7 of Article IX-A of the 1987 Constitution, notwithstanding the
oath and assumption of office by Cruz-Gonzales. The constitutional mandate is now
implemented by Rule 64 of the 1997 Rules of Civil Procedure, which provides for the
review of the judgments, final orders or resolutions of the COMELEC and the
Commission on Audit. As Rule 64 states, the mode of review is by a petition for
certiorari in accordance with Rule 65 to be filed in the Supreme Court within a limited
period of 30 days. Undoubtedly, the Court has original and exclusive jurisdiction over
Lokins petitions for certiorari and for mandamus against the COMELEC.

B
Petitioner is not guilty of forum shopping
Forum shopping consists of the filing of multiple suits involving the same parties for the
same cause of action, either simultaneously or successively, for the purpose of
obtaining a favorable judgment. Thus, forum shopping may arise: (a) whenever as a
result of an adverse decision in one forum, a party seeks a favorable decision (other
than by appeal or certiorari) in another; or (b) if, after having filed a petition in the
Supreme Court, a party files another petition in the Court of Appeals, because he
thereby deliberately splits appeals "in the hope that even as one case in which a
particular remedy is sought is dismissed, another case (offering a similar remedy) would
still be open"; or (c) where a party attempts to obtain a writ of preliminary injunction from
a court after failing to obtain the writ from another court. 19

What is truly important to consider in determining whether forum shopping exists or not
is the vexation caused to the courts and the litigants by a party who accesses different
courts and administrative agencies to rule on the same or related causes or to grant the
same or substantially the same reliefs, in the process creating the possibility of
conflicting decisions being rendered by the different fora upon the same issue. 20

The filing of identical petitions in different courts is prohibited, because such act
constitutes forum shopping, a malpractice that is proscribed and condemned as trifling
with the courts and as abusing their processes. Forum shopping is an improper conduct
that degrades the administration of justice.21

Nonetheless, the mere filing of several cases based on the same incident does not
necessarily constitute forum shopping. The test is whether the several actions filed
involve the same transactions and the same essential facts and circumstances. 22 The
actions must also raise identical causes of action, subject matter, and issues. 23 Elsewise
stated, forum shopping exists where the elements of litis pendentia are present, or
where a final judgment in one case will amount to res judicata in the other.24

Lokin has filed the petition for mandamus to compel the COMELEC to proclaim him as
the second nominee of CIBAC upon the issuance of NBC Resolution No. 07-72
(announcing CIBACs entitlement to an additional seat in the House of
Representatives), and to strike down the provision in NBC Resolution No. 07-60 and
NBC Resolution No. 07-72 holding in abeyance "all proclamation of the nominees of
concerned parties, organizations and coalitions with pending disputes shall likewise be
held in abeyance until final resolution of their respective cases." He has insisted that the
COMELEC had the ministerial duty to proclaim him due to his being CIBACs second
nominee; and that the COMELEC had no authority to exercise discretion and to
suspend or defer the proclamation of winning party-list organizations with pending
disputes.
On the other hand, Lokin has resorted to the petition for certiorari to assail the
September 14, 2007 resolution of the COMELEC (approving the withdrawal of the
nomination of Lokin, Tugna and Galang and the substitution by Cruz-Gonzales as the
second nominee and Borje as the third nominee); and to challenge the validity of
Section 13 of Resolution No. 7804, the COMELECs basis for allowing CIBACs
withdrawal of Lokins nomination.

Applying the test for forum shopping, the consecutive filing of the action for certiorari
and the action for mandamus did not violate the rule against forum shopping even if the
actions involved the same parties, because they were based on different causes of
action and the reliefs they sought were different.

C
Invalidity of Section 13 of Resolution No. 7804

The legislative power of the Government is vested exclusively in the Legislature in

accordance with the doctrine of separation of powers. As a general rule, the Legislature
cannot surrender or abdicate its legislative power, for doing so will be unconstitutional.
Although the power to make laws cannot be delegated by the Legislature to any other
authority, a power that is not legislative in character may be delegated. 25

Under certain circumstances, the Legislature can delegate to executive officers and
administrative boards the authority to adopt and promulgate IRRs. To render such
delegation lawful, the Legislature must declare the policy of the law and fix the legal
principles that are to control in given cases. The Legislature should set a definite or
primary standard to guide those empowered to execute the law. For as long as the
policy is laid down and a proper standard is established by statute, there can be no
unconstitutional delegation of legislative power when the Legislature leaves to selected
instrumentalities the duty of making subordinate rules within the prescribed limits,
although there is conferred upon the executive officer or administrative board a large
measure of discretion. There is a distinction between the delegation of power to make a
law and the conferment of an authority or a discretion to be exercised under and in
pursuance of the law, for the power to make laws necessarily involves a discretion as to
what it shall be.26

The authority to make IRRs in order to carry out an express legislative purpose, or to
effect the operation and enforcement of a law is not a power exclusively legislative in
character, but is rather administrative in nature. The rules and regulations adopted and
promulgated must not, however, subvert or be contrary to existing statutes. The function
of promulgating IRRs may be legitimately exercised only for the purpose of carrying out
the provisions of a law. The power of administrative agencies is confined to
implementing the law or putting it into effect. Corollary to this is that administrative
regulation cannot extend the law and amend a legislative enactment. It is axiomatic that
the clear letter of the law is controlling and cannot be amended by a mere administrative
rule issued for its implementation. Indeed, administrative or executive acts shall be valid
only when they are not contrary to the laws or the Constitution. 27

To be valid, therefore, the administrative IRRs must comply with the following requisites
to be valid:28

1. Its promulgation must be authorized by the Legislature;

2. It must be within the scope of the authority given by the Legislature;

3. It must be promulgated in accordance with the prescribed procedure; and

4. It must be reasonable.

The COMELEC is constitutionally mandated to enforce and administer all laws and
regulations relative to the conduct of an election, a plebiscite, an initiative, a
referendum, and a recall.29 In addition to the powers and functions conferred upon it by
the Constitution, the COMELEC is also charged to promulgate IRRs implementing the
provisions of the Omnibus Election Code or other laws that the COMELEC enforces and
administers.30

The COMELEC issued Resolution No. 7804 pursuant to its powers under the
Constitution, Batas Pambansa Blg. 881, and the Party-List System Act. 31 Hence, the
COMELEC met the first requisite.

The COMELEC also met the third requisite. There is no question that Resolution No.
7804 underwent the procedural necessities of publication and dissemination in
accordance with the procedure prescribed in the resolution itself.

Whether Section 13 of Resolution No. 7804 was valid or not is thus to be tested on the
basis of whether the second and fourth requisites were met. It is in this respect that the
challenge of Lokin against Section 13 succeeds.

As earlier said, the delegated authority must be properly exercised. This simply means
that the resulting IRRs must not be ultra vires as to be issued beyond the limits of the
authority conferred. It is basic that an administrative agency cannot amend an act of
Congress,32 for administrative IRRs are solely intended to carry out, not to supplant or to
modify, the law. The administrative agency issuing the IRRs may not enlarge, alter, or
restrict the provisions of the law it administers and enforces, and cannot engraft
additional non-contradictory requirements not contemplated by the Legislature. 33

Section 8 of R.A. No. 7941 reads:

Section 8. Nomination of Party-List Representatives.-Each registered party, organization

or coalition shall submit to the COMELEC not later that forty-five (45) days before the
election a list of names, not less than five (5), from which party-list representatives shall
be chosen in case it obtains the required number of votes.

A person may be nominated in one (1) list only. Only persons who have given their
consent in writing may be named in the list. The list shall not include any candidate of
any elective office or a person who has lost his bid for an elective office in the
immediately preceding election. No change of names or alteration of the order of
nominees shall be allowed after the same shall have been submitted to the COMELEC
except in cases where the nominee dies, or withdraws in writing his nomination,
becomes incapacitated in which case the name of the substitute nominee shall be
placed last in the list. Incumbent sectoral representatives in the House of
Representatives who are nominated in the party-list system shall not be considered
resigned.

The provision is daylight clear. The Legislature thereby deprived the party-list
organization of the right to change its nominees or to alter the order of nominees once
the list is submitted to the COMELEC, except when: (a) the nominee dies; (b) the
nominee withdraws in writing his nomination; or (c) the nominee becomes incapacitated.
The provision must be read literally because its language is plain and free from
ambiguity, and expresses a single, definite, and sensible meaning. Such meaning is
conclusively presumed to be the meaning that the Legislature has intended to convey.
Even where the courts should be convinced that the Legislature really intended some
other meaning, and even where the literal interpretation should defeat the very
purposes of the enactment, the explicit declaration of the Legislature is still the law, from
which the courts must not depart. 34 When the law speaks in clear and categorical
language, there is no reason for interpretation or construction, but only for
application.35Accordingly, an administrative agency tasked to implement a statute may
not construe it by expanding its meaning where its provisions are clear and
unambiguous.36

The legislative intent to deprive the party-list organization of the right to change the
nominees or to alter the order of the nominees was also expressed during the
deliberations of the Congress, viz:
MR. LAGMAN: And again on Section 5, on the nomination of party list representatives, I
do not see any provision here which prohibits or for that matter allows the nominating
party to change the nominees or to alter the order of prioritization of names of
nominees. Is the implication correct that at any time after submission the names could
still be changed or the listing altered?

MR. ABUEG: Mr. Speaker, that is a good issue brought out by the distinguished
Gentleman from Albay and perhaps a perfecting amendment may be introduced therein.
The sponsoring committee will gladly consider the same.

MR. LAGMAN: In other words, what I would like to see is that after the list is submitted
to the COMELEC officially, no more changes should be made in the names or in the
order of listing.

MR. ABUEG: Mr. Speaker, there may be a situation wherein the name of a particular
nominee has been submitted to the Commission on Elections but before election day
the nominee changed his political party affiliation. The nominee is therefore no longer
qualified to be included in the party list and the political party has a perfect right to
change the name of that nominee who changed his political party affiliation.

MR. LAGMAN: Yes of course. In that particular case, the change can be effected but will
be the exception rather than the rule. Another exception most probably is the nominee
dies, then there has to be a change but any change for that matter should always be at
the last part of the list so that the prioritization made by the party will not be adversely
affected.37

The usage of "No" in Section 8 "No change of names or alteration of the order of
nominees shall be allowed after the same shall have been submitted to the COMELEC
except in cases where the nominee dies, or withdraws in writing his nomination, or
becomes incapacitated, in which case the name of the substitute nominee shall be
placed last in the list" renders Section 8 a negative law, and is indicative of the
legislative intent to make the statute mandatory. Prohibitive or negative words can
rarely, if ever, be directory, for there is but one way to obey the command "thou shall
not," and that is to completely refrain from doing the forbidden act, 38 subject to certain
exceptions stated in the law itself, like in this case.

Section 8 does not unduly deprive the party-list organization of its right to choose its
nominees, but merely divests it of the right to change its nominees or to alter the order
in the list of its nominees names after submission of the list to the COMELEC.
The prohibition is not arbitrary or capricious; neither is it without reason on the part of
lawmakers. The COMELEC can rightly presume from the submission of the list that the
list reflects the true will of the party-list organization. The COMELEC will not concern
itself with whether or not the list contains the real intended nominees of the party-list
organization, but will only determine whether the nominees pass all the requirements
prescribed by the law and whether or not the nominees possess all the qualifications
and none of the disqualifications. Thereafter, the names of the nominees will be
published in newspapers of general circulation. Although the people vote for the party-
list organization itself in a party-list system of election, not for the individual nominees,
they still have the right to know who the nominees of any particular party-list
organization are. The publication of the list of the party-list nominees in newspapers of
general circulation serves that right of the people, enabling the voters to make intelligent
and informed choices. In contrast, allowing the party-list organization to change its
nominees through withdrawal of their nominations, or to alter the order of the
nominations after the submission of the list of nominees circumvents the voters demand
for transparency. The lawmakers exclusion of such arbitrary withdrawal has eliminated
the possibility of such circumvention.

D
Exceptions in Section 8 of R.A. 7941 are exclusive

Section 8 of R.A. No. 7941 enumerates only three instances in which the party-list
organization can substitute another person in place of the nominee whose name has
been submitted to the COMELEC, namely: (a) when the nominee dies; (b) when the
nominee withdraws in writing his nomination; and (c) when the nominee becomes
incapacitated.

The enumeration is exclusive, for, necessarily, the general rule applies to all cases not
falling under any of the three exceptions.

When the statute itself enumerates the exceptions to the application of the general rule,
the exceptions are strictly but reasonably construed. The exceptions extend only as far
as their language fairly warrants, and all doubts should be resolved in favor of the
general provision rather than the exceptions. Where the general rule is established by a
statute with exceptions, none but the enacting authority can curtail the former. Not even
the courts may add to the latter by implication, and it is a rule that an express exception
excludes all others, although it is always proper in determining the applicability of the
rule to inquire whether, in a particular case, it accords with reason and
justice.391avvphi1
The appropriate and natural office of the exception is to exempt something from the
scope of the general words of a statute, which is otherwise within the scope and
meaning of such general words. Consequently, the existence of an exception in a
statute clarifies the intent that the statute shall apply to all cases not excepted.
Exceptions are subject to the rule of strict construction; hence, any doubt will be
resolved in favor of the general provision and against the exception. Indeed, the liberal
construction of a statute will seem to require in many circumstances that the exception,
by which the operation of the statute is limited or abridged, should receive a restricted
construction.

E
Section 13 of Resolution No. 7804 expanded
the exceptions under Section 8 of R.A. No. 7941

Section 13 of Resolution No. 7804 states:

Section 13. Substitution of nominees. A party-list nominee may be substituted only

when he dies, or his nomination is withdrawn by the party, or he becomes
incapacitated to continue as such, or he withdraws his acceptance to a
nomination. In any of these cases, the name of the substitute nominee shall be placed
last in the list of nominees.

No substitution shall be allowed by reason of withdrawal after the polls.

Unlike Section 8 of R.A. No. 7941, the foregoing regulation provides four instances, the
fourth being when the "nomination is withdrawn by the party."

Lokin insists that the COMELEC gravely abused its discretion in expanding to four the
three statutory grounds for substituting a nominee.

We agree with Lokin.

The COMELEC, despite its role as the implementing arm of the Government in the
enforcement and administration of all laws and regulations relative to the conduct of an
election,40 has neither the authority nor the license to expand, extend, or add anything to
the law it seeks to implement thereby. The IRRs the COMELEC issues for that purpose
should always accord with the law to be implemented, and should not override,
supplant, or modify the law. It is basic that the IRRs should remain consistent with the
law they intend to carry out.41

Indeed, administrative IRRs adopted by a particular department of the Government

under legislative authority must be in harmony with the provisions of the law, and should
be for the sole purpose of carrying the laws general provisions into effect. The law itself
cannot be expanded by such IRRs, because an administrative agency cannot amend an
act of Congress.42

The COMELEC explains that Section 13 of Resolution No. 7804 has added nothing to
Section 8 of R.A. No. 7941,43because it has merely reworded and rephrased the
statutory provisions phraseology.

The explanation does not persuade.

To reword means to alter the wording of or to restate in other words; to rephrase is to

phrase anew or in a new form. 44 Both terms signify that the meaning of the original word
or phrase is not altered.

However, the COMELEC did not merely reword or rephrase the text of Section 8 of R.A.
No. 7941, because it established an entirely new ground not found in the text of the
provision. The new ground granted to the party-list organization the unilateral right to
withdraw its nomination already submitted to the COMELEC, which Section 8 of R.A.
No. 7941 did not allow to be done. Neither was the grant of the unilateral right
contemplated by the drafters of the law, who precisely denied the right to withdraw the
nomination (as the quoted record of the deliberations of the House of Representatives
has indicated). The grant thus conflicted with the statutory intent to save the nominee
from falling under the whim of the party-list organization once his name has been
submitted to the COMELEC, and to spare the electorate from the capriciousness of the
party-list organizations.

We further note that the new ground would not secure the object of R.A. No. 7941 of
developing and guaranteeing a full, free and open party-list electoral system. The
success of the system could only be ensured by avoiding any arbitrariness on the part
of the party-list organizations, by seeing to the transparency of the system, and by
guaranteeing that the electorate would be afforded the chance of making intelligent and
informed choices of their party-list representatives.

The insertion of the new ground was invalid. An axiom in administrative law postulates
that administrative authorities should not act arbitrarily and capriciously in the issuance
of their IRRs, but must ensure that their IRRs are reasonable and fairly adapted to
secure the end in view. If the IRRs are shown to bear no reasonable relation to the
purposes for which they were authorized to be issued, they must be held to be invalid
and should be struck down.45
F
Effect of partial nullity of Section 13 of Resolution No. 7804

An IRR adopted pursuant to the law is itself law. 46 In case of conflict between the law
and the IRR, the law prevails. There can be no question that an IRR or any of its parts
not adopted pursuant to the law is no law at all and has neither the force nor the effect
of law.47 The invalid rule, regulation, or part thereof cannot be a valid source of any right,
obligation, or power.

Considering that Section 13 of Resolution No. 7804 to the extent that it allows the
party-list organization to withdraw its nomination already submitted to the COMELEC
was invalid, CIBACs withdrawal of its nomination of Lokin and the others and its
substitution of them with new nominees were also invalid and ineffectual. It is clear
enough that any substitution of Lokin and the others could only be for any of the
grounds expressly stated in Section 8 of R.A. No. 7941. Resultantly, the COMELECs
approval of CIBACs petition of withdrawal of the nominations and its recognition of
CIBACs substitution, both through its assailed September 14, 2007 resolution, should
be struck down for lack of legal basis. Thereby, the COMELEC acted without
jurisdiction, having relied on the invalidly issued Section 13 of Resolution No. 7804 to
support its action.

WHEREFORE, we grant the petitions for certiorari and mandamus.

We declare Section 13 of Resolution No. 7804 invalid and of no effect to the extent that
it authorizes a party-list organization to withdraw its nomination of a nominee once it has
submitted the nomination to the Commission on Elections.

Accordingly, we annul and set aside:

(a) The resolution dated September 14, 2007 issued in E. M. No. 07-054
approving Citizens Battle Against Corruptions withdrawal of the nominations of
Luis K. Lokin, Jr., Sherwin N. Tugna, and Emil Galang as its second, third, and
fourth nominees, respectively, and ordering their substitution by Cinchona C.
Cruz-Gonzales as second nominee and Armi Jane R. Borje as third nominee;
and

(b) The proclamation by the Commission on Elections of Cinchona C. Cruz-

Gonzales as a Party-List Representative representing Citizens Battle Against
Corruption in the House of Representatives.
We order the Commission on Elections to forthwith proclaim petitioner Luis K. Lokin, Jr.
as a Party-List Representative representing Citizens Battle Against Corruption in the
House of Representatives.

We make no pronouncements on costs of suit.

SO ORDERED.

G.R. No. 187231 June 22, 2010

MINERVA GOMEZ-CASTILLO Petitioner,

vs.
COMISSION ON ELECTIONS and STRIKE B. REVILLA, Respondents.
DECISION

BERSAMIN, J.:

Petitioner Minerva Gomez-Castillo (Castillo) hereby seeks to nullify the orders dated
January 30, 2009 and March 11, 20091 issued in EAC No. A-01-2009 by the
Commission on Elections (COMELEC).

Antecedents

Castillo and respondent Strike P. Revilla ran for Municipal Mayor of Bacoor, Cavite
during the May 14, 2007 local elections. After the Municipal Board of Canvassers
proclaimed Revilla as the elected Municipal Mayor of Bacoor, Cavite, Castillo filed an
Election Protest Ad Cautelam2 in the Regional Trial Court (RTC) in Bacoor, Cavite,
which was eventually raffled to Branch 19.

Through his Answer, Revilla sought the dismissal of the election protest, alleging that it
was filed in the wrong Branch of the RTC. He pointed out that Supreme Court
Administrative Order (SCAO) No. 54-2007 designated Branch 22 of the RTC in Imus,
Cavite and Branch 88 of the RTC in Cavite City to hear, try and decide election contests
involving municipal officials in Cavite; and that contrary to SCAO No. 54-2007, Castillo
filed his protest in the RTC in Bacoor, Cavite, which was not the proper court.

On November 21, 2008, Branch 19 dismissed Castillos election protest for being
violative of SCAO No. 54-2007.

On December 23, 2008, Castillo presented a notice of appeal. 3 Thereupon, the RTC
ordered that the complete records of the protest be forwarded to the Election Contests
Adjudication Department (ECAD) of the COMELEC.41avvphi1

The First Division of the COMELEC dismissed the appeal for being brought beyond the
five-day reglementary period, noting that although Castillo had received the November
21, 2008 order of the RTC on December 15 , 2008, she filed her notice of appeal on
December 23, 2008, a day too late to appeal, to wit:

Pursuant to Section 3, Rule 22 of the COMELEC Rules of Procedure which requires the
appellant to file her notice of appeal "within five (5) days after promulgation of the
decision of the court xxx" and considering further that jurisprudence holds that
perfection of an appeal in the manner and within the period laid down by law is not only
mandatory but JURISDICTIONAL, this Commission, First Division, RESOLVES to
DISMISS the instant appeal for appellant's failure to file her Notice of Appeal within the
five (5) day reglementary period.
SO ORDERED.5

Castillo moved for the reconsideration of the dismissal of her appeal, but the COMELEC
denied the motion because she did not pay the motion fees required under Sec. 7(f),
Rule 40 of the COMELEC Rules of Procedure, as amended by COMELEC Resolution
No. 02-0130, viz:

The "Motion for Reconsideration" filed by protestant-appellant Minerva G. Castillo, thru

registered mail on 13 February 2009 and received by this Commission on 4 March
2009, seeking reconsideration of the Commission's (First Division) Order dated 30
January 2009, is hereby DENIED for failure of the movant to pay the necessary motion
fees under Sec. 7(f), Rule 40 of the Comelec Rules of Procedure 6 as amended by
Comelec Resolution no. 02-0130.71avvphi1

Castillo has brought the present recourse, contending that the COMELECs orders
dismissing her appeal and denying her motion for reconsideration were issued with
grave abuse of discretion amounting to lack or excess of jurisdiction.

Parties Arguments

Castillo insists that her notice of appeal was seasonably filed; otherwise, the RTC would
not have given due course to his appeal; that Section 3, Rule 22 of the COMELEC
Rules of Procedure, cited in the assailed order dated January 30, 2009, did not apply to
her case, because Section 2 of Rule I of the COMELEC Rules of Procedure provides
that:

Sec. 2. Applicability.- These rules, except Part VI, shall apply to all actions and
proceedings brought before the Commission. Part VI shall apply to election contests
and Quo Warranto cases cognizable by courts of general jurisdiction.

that the COMELEC Rules of Procedure applied only to actions and proceedings brought
before the COMELEC, not to actions or proceedings originating in courts of general
jurisdiction; that even assuming that the appeal was belatedly filed, the rules on election
contests should be liberally construed to the end that mere technical objections would
not defeat the will of the people in the choice of public officers; that the Court relaxed on
numerous occasions the application of the rules in order to give due course to belated
appeals upon strong and compelling reasons; that an electoral contest like hers was
imbued with public interest, because it involved the paramount need to clarify the real
choice of the electorate; that Section 4 of Rule I of the COMELEC Rules of Procedure
even allows the COMELEC to suspend its own rules of procedure in order to obtain a
speedy disposition of all matters pending before the COMELEC; and that the
COMELEC should not have dismissed her motion for reconsideration for her mere
failure to pay the corresponding filing fee, but should have considered the soundness of
her argument to the effect that SCAO No. 54-2007 continued to vest jurisdiction to try
and decide election contest involving elective municipal officials in the RTC as a whole,
rendering the designation of the RTC branches to handle election protests akin to a
designation of venue.

Castillo further insists that Section 12 of Rule 2 of the COMELEC Rules of Procedure
provides that assignment of cases to the specially designated courts should be done
exclusively by raffle conducted by the executive judge or by the judges designated by
the Supreme Court; and that her protest was thus duly raffled to the RTC in Bacoor,
Cavite, considering that SCAO 54-2007 should be construed as a permissive rule that
cannot supersede the general rule that jurisdiction over election contests is vested in
the RTC.

In his comment,8 Revilla submits that the COMELEC correctly dismissed Castillos
appeal for being filed beyond the five-day reglementary period prescribed in Section 3
of Rule 22 of the COMELEC Rules of Procedure, thus:

Section 3. Notice of Appeal. - Within five (5) days after promulgation of the decision of
the court, the aggrieved party may filed with said court a notice of appeal, and serve a
copy thereof upon the attorney of record of the adverse party.

that A.M. No. 07-4-15-SC, otherwise known as The Rules of Procedure in Election
Contests Involving Elective Municipal and Barangay Officials, clearly and categorically
directed:

Section 8. Appeal. - An aggrieved party may appeal the decision to the commission on
Elections, within five days after promulgation, by filing a notice of appeal with the court
that rendered the decision, with copy served on the adverse counsel or party if not
represented by counsel.

that the period for filing an appeal is not a mere technicality of law or procedure and the
right to appeal is merely a statutory privilege that may be exercised only in the manner
prescribed by the law; that the notice of appeal, even on the assumption that it was filed
on time, still remained futile due to the petitioners failure to pay the corresponding fee
for the motion for reconsideration; that the failure to pay the filing fee rendered the
motion for reconsideration a mere scrap of paper, because it prevented the COMELEC
from acquiring jurisdiction over the protest; and that the COMELEC could not be faulted
for applying its procedural rules to achieve a just and expeditious determination of every
proceeding brought before it.
Issues

Does Section 13 of Rule 2 of A.M. No. 07-4-15-SC designate the RTC Branch that has
jurisdiction over an election contest, or does it merely designate the proper venue for
filing?

In case the RTC was incorrect, is the error enough to warrant the reversal of its order of
dismissal despite its having attained finality?

Ruling

The petition has no merit.

A
Error of Petitioner in filing the protest in RTC in Bacoor, not jurisdictional

It is well-settled that jurisdiction is conferred by law. As such, jurisdiction cannot be fixed

by the will of the parties; nor be acquired through waiver nor enlarged by the omission
of the parties; nor conferred by any acquiescence of the court. The allocation of
jurisdiction is vested in Congress, and cannot be delegated to another office or agency
of the Government.

The Rules of Court does not define jurisdictional boundaries of the courts. In
promulgating the Rules of Court, the Supreme Court is circumscribed by the zone
properly denominated as the promulgation of rules concerning pleading, practice, and
procedure in all courts;9 consequently, the Rules of Court can only determine the
means, ways or manner in which said jurisdiction, as fixed by the Constitution and acts
of Congress, shall be exercised. The Rules of Court yields to the substantive law in
determining jurisdiction.10

The jurisdiction over election contests involving elective municipal officials has been
vested in the RTC by Section 251, Batas Pambansa Blg. 881 (Omnibus Election
Code).11 On the other hand, A.M. No. 07-4-15-SC, by specifying the proper venue where
such cases may be filed and heard, only spelled out the manner by which an RTC with
jurisdiction exercises such jurisdiction. Like other rules on venue, A.M. No. 07-4-15-SC
was designed to ensure a just and orderly administration of justice, 12 and is permissive,
because it was enacted to ensure the exclusive and speedy disposition of election
protests and petitions for quo warranto involving elective municipal officials.13

Castillos filing her protest in the RTC in Bacoor, Cavite amounted only to a wrong
choice of venue. Hence, the dismissal of the protest by Branch 19 constituted plain
error, considering that her wrong choice did not affect the jurisdiction of the RTC. What
Branch 19 should have done under the circumstances was to transfer the protest to
Branch 22 of the RTC in Imus, Cavite, which was the proper venue. Such transfer was
proper, whether she as the protestant sought it or not, given that the determination of
the will of the electorate of Bacoor, Cavite according to the process set forth by law was
of the highest concern of our institutions, particularly of the courts.

B
Castillos tardy appeal should be dismissed

Section 8 of A.M. No. 07-4-15-SC provides that:

Section 8. Appeal. - An aggrieved party may appeal the decision to the Commission on
Elections within five days after promulgation by filing a notice of appeal with the court
that rendered the decision with copy served on the adverse counsel or party if not
represented by counsel.

Although Castillo had received the November 21, 2008 order of the RTC on December
15, 2008, she filed her notice of appeal only on December 23, 2008, or eight days after
her receipt of the decision. Her appeal was properly dismissed for being too late under
the aforequoted rule of the COMELEC.

Castillo now insists that her appeal should not be dismissed, because she claims that
the five-day reglementary period was a mere technicality, implying that such period was
but a trivial guideline to be ignored or brushed aside at will.

Castillos insistence is unacceptable. The period of appeal and the perfection of appeal
are not mere technicalities to be so lightly regarded, for they are essential to the finality
of judgments, a notion underlying the

stability of our judicial system. 14 A greater reason to adhere to this notion exists herein,
for the short period of five days as the period to appeal recognizes the essentiality of
time in election protests, in order that the will of the electorate is ascertained as soon as
possible so that the winning candidate is not deprived of the right to assume office, and
so that any doubt that can cloud the incumbency of the truly deserving winning
candidate is quickly removed.

Contrary to Castillos posture, we cannot also presume the timeliness of her appeal
from the fact that the RTC gave due course to her appeal by its elevating the protest to
the COMELEC. The presumption of timeliness would not arise if her appeal was
actually tardy.
It is not trite to observe, finally, that Castillos tardy appeal resulted in the finality of the
RTCs dismissal even before January 30, 2002. This result provides an additional
reason to warrant the assailed actions of the COMELEC in dismissing her appeal.
Accordingly, the Court finds that the COMELECs assailed actions were appropriate and
lawful, not tainted by either arbitrariness or whimsicality,

WHEREFORE, the petition is dismissed for lack of merit.

SO ORDERED.

G.R. No. 158708 August 10, 2010

JUSTINA MANIEBO, Petitioner,

vs.
HON. COURT OF APPEALS and THE CIVIL SERVICE COMMISSION, Respondents.

DECISION

BERSAMIN, J.:

We consider herein the last plea for clemency of the petitioner herein, an employee of a
local government unit, who was dismissed from the service after her dishonesty in
presenting herself as holding a civil service eligibility was discovered. The Civil Service
Commission (CSC) meted the ultimate penalty on her. The Court of Appeals (CA) found
her petition for review defective, and dismissed it, in effect upholding the CSCs action.

By petition for review on certiorari, therefore, the petitioner appeals the resolutions
dated September 5, 2002, January 8, 2003, and June 5, 2003, 1 all issued by the Court
of Appeals (CA) in CA-GR SP No. 72555 entitled Justina Maniebo v. Civil Service
Commission.

Antecedents2

On July 1, 1994, the Mayor of the Municipality of Puerto Galera, Oriental Mindoro
issued a promotional permanent appointment to the petitioner as Cashier III in the
Office of the Municipal Treasurer because she appeared to possess the qualifications
for the position, including the Career Service (Professional) Eligibility appearing in line
18 of her Personal Data Sheet showing her to have passed with a rating of 74.01% the
Career Service (Professional) examination given in Calapan, Oriental Mindoro on July
17, 1983.

When the report of her rating was verified against the Masterlist of Eligibles, however, it
was discovered that the petitioner had actually failed in the examination for obtaining a
rating of only 60%.

The CSC Regional Office (CSCRO) No. IV subsequently held a preliminary

investigation that resulted in the finding that a prima facie case of falsification existed
against the petitioner. Accordingly, on October 28, 1997, CSCRO No. IV formally
charged her with possession of spurious report of rating, falsification, grave misconduct,
and dishonesty.

On November 7, 1997, the petitioner filed her answer, which CSCRO No. IV considered
unsatisfactory. Thus, CSCRO set the case for hearing.

During the November 22, 1999 hearing, the Hearing Officer allowed the petitioner to
comment verbally or to file her objection to the evidence formally offered against her.
Instead, her counsel requested the Hearing Officer to mark her supporting documents
as her evidence, and for her to be allowed to testify for herself.

In her direct testimony, the petitioner denied knowledge of the falsified nature of her
Career Service (Professional) eligibility rating. She asserted that the rating had come
from the CSC through the mails. She insisted that she did not on any occasion
approach any personnel of the CSC, or anybody else connected with the CSC in order
to procure the passing grade of 74.01%.

CSCRO No. IV then rendered its decision on December 16, 1999, viz:

WHEREFORE, this Office finds respondent Justina Maniebo, Cashier III, Office of the
Municipal Treasurer, Municipal Government of Puerto Galera, Oriental Mindoro, guilty of
Possession of Spurious Report of Rating, Falsification, Grave Misconduct. Accordingly,
respondent Maniebo is hereby meted the penalty of DISMISSAL from the service. 3

On February 4, 2000, the petitioner appealed to the CSC, 4 which affirmed the decision
of CSCRO No. IV through its Resolution No. 02-0433 dated March 20, 2002, 5 disposing
thus:
WHEREFORE, premises considered, the appeal of Justina M. Maniebo is hereby
DISMISSED for lack of merit. Accordingly, the Decision of the Civil Service Commission
Regional Office No. IV dated December 16, 1999 is AFFIRMED.

On August 20, 2002, the petitioner sought reconsideration, but the CSC denied her
motion through Resolution No. 02-1028. 6

The petitioner next appealed to the CA.7

Ruling of the CA

In the CA, the petitioner raised the following issues, 8 to wit:

a) Whether the CSC committed grave error in not considering good faith on the
part of the petitioner in the determination of the appealed decision; and

b) Whether the CSC was correct in imposing the penalty of dismissal in view of
the circumstances obtaining in the case.

She attached to the petition for review the following annexes:

a) Certified true copy of CSC Resolution No. 02-1028 dated August 5, 2002
denying the petitioner's motion for reconsideration (Annex A); 9

b) Original copy of the notice of appeal dated August 23, 2002 filed in the CSC
(Annex B);10

c) Photocopy of the petitioners appeal dated January 31, 2000 to the CSC
(Annex C);11

d) The petitioners affidavit of merit dated August 2002 (Annex D). 12

In its assailed resolution dated September 5, 2002, 13 the CA dismissed the petition for
review due to the petitioners failure to accompany it with the requisite certified true
copies of the material portions of the record, stating:

For failure to accompany the petition for review with the requisite certified true copies of
the material portions of the record referred to therein, i.e., the preliminary investigation
and charge for possession of spurious report of rating, the answer, the decision dated
December 16, 1999 of Civil Service Commission Regional Office No. IV, Civil Service
Commission Resolution No. 02-0433 dated March 20, 2002, and other supporting
papers and the evidences submitted, the Court Resolved to DENY DUE COURSE and,
consequently, to DISMISS the petition pursuant to Section 7, Rule 43 of the 1997 Rules
of Civil Procedure.

SO ORDERED.

The petitioner filed a motion for reconsideration,14 in which her counsel, Atty. Al Harith D.
Sali, even undertook to submit the required certified copies of the material portions
within ten days from October 23, 2002. She explained in her motion that her counsel
had failed to submit the required certified copies, due to her failure to turn over said
copies to her counsel because of the distance between her home in Puerto Galera,
Oriental Mindoro and the office of her counsel in Fairview, Quezon City.

Following its receipt of the comment of the Office of the Solicitor General on December
12, 2002,15 the CA denied the motion for reconsideration in the assailed resolution dated
January 8, 2003,16 viz:

Acting on the motion of the petitioner for a reconsideration of the Resolution dated
September 5, 2002, which dismissed the petition for failure to append thereto the
requisite certified true copies of the material portions of the record referred to therein, as
well as the Comment interposed thereto filed by the Office of the Solicitor General, and
considering that the aforesaid motion failed to allege the date of receipt of a copy of the
assailed Resolution to determine the timeliness of the filing of the said motion and no
efforts (sic) was exerted to rectify or supply the procedural errors the petition suffered
even within the requested period of ten (10) days, the Court Resolved to DENY the
aforesaid motion for reconsideration.

SO ORDERED.

On February 5, 2003, the petitioner filed a so-called motion for reconsideration that was
signed by another lawyer, Atty. Joventino V. Diamante (allegedly as collaborating
counsel), although Atty. Al Harith D. Sali remained as counsel. 17

In its third assailed resolution dated June 5, 2003, 18 the CA denied the petitioners
motion for reconsideration, which was in reality as second motion for reconsideration
that was prohibited under Rule 52, Sec. 2 of the Rules of Court.

Hence, this appeal by petition for review on certiorari.

Issues

The petitioner claims:19

 I.

WHETHER THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN

DISMISSING THE PETITIONER'S PETITION FOR REVIEW FOR FAILURE TO
ATTACH CERTIFIED COPY OF THE ANNEXES WHEN THE RULES AND
JURISPRUDENCE DO NOT REQUIRE THAT ALL ANNEXES ATTACHED TO
THE PETITION SHOULD BE CERTIFIED.

II.

WHETHER THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION

BASED ON ALLEGED TECHNICALITY WHICH WAS NOT SANCTIONED BY
JURISPRUDENCE.

Ruling

The petition has no merit.

The petitioner argues that her submission of a certified true copy of CSC Resolution 02-
1028 in her petition before the CA constituted a substantial compliance with Section 6,
Rule 43 of the Rules of Court. She averred that rules of procedure should be liberally
construed to afford litigants the opportunity to prove their claims and prevent a denial of
justice due to legal technicalities; that she had already lost her job due to the immediate
execution of the decision pending appeal, that to require her to secure certified true
copies of all the annexes to the petition would be too burdensome for her and would
contravene the constitutionally guaranteed free access to the courts and quasi-judicial
bodies and adequate legal assistance; and that it was already settled that under Section
6, Rule 43 of the Rules of Court, only the copies of the assailed judgments or final
orders of the lower courts needed to be certified. 20She insisted that the dismissal of her
appeal due to technicalities would constitute a deprivation of property without due
process of law because what was at stake herein was her right to employment.

In its comment,21 the CSC insisted that the CA justifiably denied due course to the
petition, considering that Section 7, Rule 43 of the Rules of Court expressly stated that
the failure of the petitioner to file the required certified true copies of the material
portions of the record referred to in the petition was sufficient ground for its dismissal;
and that the subsequent motions for reconsideration were also rightly denied because
the petitioner exerted no effort to furnish the required certified copies within the
requested period of ten days.
The petitioners plea for liberality is undeserving of acceptance.

The CA did not commit any error, least of all a reversible one. Its dismissal was founded
on the correct application of the applicable rule. Indeed, Section 6, Rule 43 of the Rules
of Court expressly lists down the pleadings and other matters that a petition for review
should contain, thus:

Section 6. Contents of the petition. The petition for review shall (a) state the full
names of the parties to the case, without impleading the court or agencies either as
petitioners or respondents; (b) contain a concise statement of the facts and issues
involved and the grounds relied upon for the review; (c) be accompanied by a clearly
legible duplicate original or a certified true copy of the award, judgment, final order or
resolution appealed from, together with certified true copies of such material portions of
the record referred to therein and other supporting papers; and (d) contain a sworn
certification against forum shopping as provided in the last paragraph of section 2, Rule
42. The petition shall state the specific material dates showing that it was filed within the
period fixed herein. (2a)

The rule clearly requires the petition for review to be accompanied by "a clearly legible
duplicate original or a certified true copy of the award, judgment, final order or resolution
appealed from, together with certified true copies of such material portions of the record
referred to therein and other supporting papers." The requirement is intended to
immediately enable the CA to determine whether to give due course to the appeal or not
by having all the material necessary to make such determination before it. This is
because an appeal under Rule 43 is a discretionary mode of appeal, which the CA may
either dismiss if it finds the petition to be patently without merit, or prosecuted manifestly
for delay, or that the questions raised therein are too unsubstantial to require
consideration; or may process by requiring the respondent to file a comment on the
petition, not a motion to dismiss, within 10 days from notice. 22

The petitioner was not entitled to a liberal construction of the rules of procedure.
Although her petition cited decisions of the Court declaring that only the copies of the
decisions or final orders assailed on appeal needed to be certified, 23 it is acknowledged
even in the cited decisions of the Court that there should at least be a substantial
compliance with the rules. She should not forget that her petition for review in the CA
was essentially assailing not only CSC Resolution 02-1028 (denying her motion for
reconsideration) but also CSC Resolution No. 02-0433 (the very decision of the CSC
finding her guilty of possession of the spurious report of rating, falsification, grave
misconduct, and dishonesty, and imposing the penalty of dismissal from the service).
In Heirs of Generoso A. Juaban v. Bancale, 24 where only the order denying the
respondents motion for reconsideration was alleged as the subject of the appeal, the
Court went beyond the literal content of respondents notice of appeal and held that the
appeal should be construed to include the final order that the respondents were seeking
to be reconsidered when they filed their motion for reconsideration, because such
approach was more in accord with the intent of the parties. Considering that the
petitioners appeal also assailed CSC Resolution No. 02-0433, she should have
furnished the CA with a certified true copy of that resolution.

With respect to the other supporting documents of the petition as set forth in Section 6,
Rule 43, their legible copies should have been attached to the petition or to the motion
for reconsideration filed against the resolution dismissing the petition. However, she did
not even substantially comply with the requirement. Making her non-compliance worse
was her reneging on her own express undertaking to the CA to submit the omitted
documents within the 10-day period she had prayed for in her first motion for
reconsideration by not furnishing the required supporting documents, or even the plain
legible copies thereof from the time she filed her motion for reconsideration on October
23, 2002 until its resolution on January 8, 2003. Neither did she render any explanation
for her failure to honor her undertaking. It was only when she filed the petition in this
Court that she explained her failure to submit the required documents to the CA to be
due to her financial constraints and the distance between her residence and the office of
her counsel.

Also, the petitioners motion for reconsideration did not allege the date when she had
received a copy of the resolution. Her omission to allege did not escape the attention of
the CA, which cited it in the resolution dated January 8, 2003 as a ground for denying
the motion for reconsideration. That detail was necessary to determine the timeliness of
the filing of the motion for reconsideration. Hence, the CA committed no reversible error
in denying her first motion for reconsideration.

The petitioner next filed a second motion for reconsideration after the issuance of the
resolution dated January 8, 2003. The CA regarded her doing so as a blatant
contravention of the Rules of Court. Indeed, her act directly violated Section 4, Rule 43,
and Section 2, Rule 52, both of the Rules of Court, viz:

Section 4. Period of appealThe appeal shall be taken within fifteen (15) days from
notice of the award, judgment, final order or resolution, or from the date of its last
publication, if publication is required by law for its effectivity, or of the denial of
petitioners motion for new trial or reconsideration duly filed in accordance with the
governing law of the court or agency a quo. Only one (1) motion for reconsideration
shall be allowed. Upon proper motion and the payment of the full amount of the docket
fee before the expiration of the reglementary period, the Court of Appeals may grant an
additional period of fifteen (15) days only within which to file the petition for review. No
further extension shall be granted except for the most compelling reason and in no case
to exceed fifteen (15) days.

Section 2. Second motion for reconsideration. No second motion for reconsideration

of a judgment or final resolution by the same party shall be entertained.

Nonetheless, we point out that even in her prohibited second motion for reconsideration,
the petitioner did not tender any explanation for her failure to make good her
undertaking to furnish to the CA the required certified or legible copies of the material
portions of the record. Instead, she contented herself with merely reiterating the
grounds previously used in her first motion for reconsideration, adding only that any
further documents needed by the CA could be made available once the records of the
case were transmitted by the CSC to the CA, as provided in Section 11, Rule 43 of the
Rules of Court.

Contrary to the petitioners position, the transmittal of the records was not mandatory
but only discretionary upon the CA.25 Section 11, Rule 43 of the Rules of Court provides:

Section 11. Transmittal of record.Within fifteen (15) days from notice that the petition
has been given due course, the Court of Appeals may require the court or agency
concerned to transmit the original or a legible certified true copy of the entire record of
the proceeding under review. The record to be transmitted may be abridged by
agreement of all parties to the proceeding. The Court of Appeals may require or permit
subsequent correction of or addition to the record.

Evidently, the petitioner repeatedly disregarded the rules too many times to merit any
tolerance by the Court, thereby exhibiting a deplorable tendency to trivialize the rules of
procedure. Yet, such rules were not to be belittled or dismissed simply because their
non-observance might have resulted in prejudicing a partys substantive rights. 26The
bare invocation of substantial justice was not a magic wand that would compel the
suspension of the rules of procedure. Of necessity, the reviewing court had also to
assess whether the appeal was substantially meritorious on its face, or not, for only
after such finding could the review court ease the often stringent rules of
procedure.27Otherwise, the rules of procedure would be reduced to mere trifles.

B.

The petitioner claims that she relied in good faith on the rating she had received through
the mails. She denies being the author of the forged certificate. She pleads that with her
government service since 1981 and her very satisfactory performance (borne out by the
series of promotional appointments from the position of Accounting Clerk to Cashier III),
she would never deliberately misrepresent to the CSC that she had passed the Career
Service Examination, because she knew that the CSC could verify her eligibility rating at
any time.

Although the Court is not called upon to rule on the foregoing matters in view of its
finding that the CAs assailed dismissal of the petition for review was based on the
correct application of the pertinent provisions of the Rules of Court, it is nonetheless not
amiss but reasonable to dwell on such matters if only to establish that the positions
taken by the petitioner do not advance her cause at all and save the day for her.

It is not disputed that the petitioners statement in her Personal Data Sheet dated June
24, 1994 that she had passed the July 17, 1983 Career Service (Professional)
Examination given in Calapan, Oriental Mindoro with a rating of 74.01% was contrary to
her actual rating of 60% shown in the Masterlist of Eligibles of the CSC. Her defense of
good faith was weak and untrustworthy. Although she did not need to prove her good
faith, it being presumed unless persuasive evidence to the contrary is adduced, 28 the
presumption did not apply to her in the face of a showing of the genuineness of the
entries made in official records,29 like the Masterlist of Eligibles. Accordingly, she should
have presented concrete evidence to prove that the spurious certificate of rating had
been only mailed to her.

In Civil Service Commission v. Cayobit,30 we ruled that as between a government

employees self serving claim that she passed the Civil Service Examination, and his
actual score appearing in the Masterlist of Eligibles, the latter must prevail. We
observed there that:

The bare testimony of respondent that she has nothing to do with forging the certificate
as she actually just received it by mail in her residential address deserves scant belief.
We cannot accept her simplistic claim that she used the certificate under the false
impression that it was genuine. The three witnesses and the various documents she
presented cannot exculpate her. The witnesses, in essence, merely testified that they
received the certificate of eligibility in question from respondent. Their belief that she
was eligible was based on their reliance on the certificate.

Apropos is the following finding of petitioner:

The testimonies of the three (3) abovementioned witnesses failed to rebut the fact that
Cayobit did not pass the examination and does not have an eligibility. Respondent also
failed to prove that she had no participation in the procurement of eligibility. Hence it
cannot be presumed that Cayobit used the fake eligibility in good faith.
In that regard, the petitioner could have easily presented a certification from the
postmaster concerned in order to establish that she had received the spurious report of
rating by mail. Yet, she did not, and, instead, she was content with making the bare
denial of having any part in procuring the false document; and with claiming that the
report had innocently landed on her doorstep. She was guilty of procuring the
document, because she had produced and relied on it. Without her satisfactory
explanation, her being in possession of the forged document, or her having used it
warranted the presumption of her being herself the forger or the person who had
caused the forgery.31

C.

The petitioner contends that even assuming that notwithstanding her lack of any civil
service eligibility upon her entry into the Civil Service, she could still be deemed to have
acquired eligibility by operation of law under the terms of Republic Act No. 6850, 32 a law
granting civil service eligibility to employees efficiently serving the Government for at
least seven years; that she was already a civil service eligible as of February 8, 1990,
the date of approval of the law, and was no longer dismissible from the civil service by
then; and that any defect in her appointment as a permanent government employee
was cured by her acquisition of eligibility in 1990.

The petitioners contention has no basis.

Sections 1 and 2 of Republic Act No. 6850 state:

Section 1. All government employees as of the approval of this Act who are holding
career civil service positions appointed under provisional or temporary status who have
rendered at least a total of seven (7) years of efficient service may be granted the civil
service eligibility that will qualify them for permanent appointment to their permanent
positions.

The Civil Service Commission shall formulate performance evaluation standards in

order to determine those temporary employees who are qualified to avail themselves of
the privilege granted under this Act.

The civil service eligibility herein granted may apply to such other positions as the Civil
Service Commission may deem appropriate.

Section 2. The Civil Service Commission shall promulgate the rules and regulations to
implement this act consistent with the merit and fitness principle within ninety (90) days
after its effectivity.
These legal provisions show that not every temporary or provisional employee is
automatically deemed to be a permanent employee after rendering at least seven years
of service in the Government. The CSC still needs to evaluate whether the employee is
qualified to avail himself or herself of the privilege granted by the statute. Moreover, that
an appointee obtains a civil service eligibility later on does not ipso facto convert his
temporary appointment into a permanent one.ten.lihpwal A new appointment is still
required, because a permanent appointment is not a continuation of the temporary
appointment; the two are distinct acts of the appointing authority.33 As held in Maturan v.
Maglana,34 a permanent appointment implies the holding of a civil service eligibility on
the part of the appointee, unless the position involved requires no such eligibility. Where
the appointee does not possess a civil service eligibility, the appointment is considered
temporary. The subsequent acquisition of the required eligibility will not make the
temporary appointment regular or permanent; a new appointment is needed.

Accordingly, any temporary employee who has served for the required duration of seven
years must first be found by the CSC to continuously possess the minimum
qualifications for holding the position, except the required eligibility, before he or she
may be granted civil service eligibility. Among the minimum qualifications is the
continuous observance of the Code of Conduct and Ethical Standards for Public
Officials and Employees.351avvphi1

The petitioner failed to comply with this necessary minimum qualification. She thrived on
her having misled the Government into believing that she had possessed the requisite
civil service eligibility for the various positions she had successively held in her 20 years
of service. In the first place, she would not have been appointed in a permanent or
temporary capacity, had the CSC sooner discovered her dishonesty.

Besides, pursuant to Section 20, Rule VI of the Omnibus Implementing Regulations of

the Revised Administrative Code, to wit:

Section 20. Notwithstanding the initial approval of an appointment, the same may be
recalled on any of the following grounds.

a) Non-compliance with the procedures/criteria provided in the agencys Merit

Promotion Plan:

b) Failure to pass through the agencys Selection/Promotion Board;

c) Violation of the existing collective agreement between management and

employees relative to promotion; or
 d) Violation of other existing civil service law, rules and regulations.

even an appointment initially approved by the CSC may be subsequently recalled when
found to be invalid. R.A. No. 6850 was never meant to cure an appointment void from
the very beginning for being based on a false representation of eligibility, like that of the
petitioner. A contrary construction of the statute will, in effect, reward dishonesty.

Lastly, the petitioners posture, that her dismissal from the service was too harsh a
punishment, considering that she had rendered 20 years of efficient service in the
Government, does not convince.

In Civil Service Commission v. Sta. Ana, 36 the CSC Office for Legal Affairs (CSC-OLA)
found the respondent guilty of dishonesty and falsification of public documents for
falsely representing in his Personal Data Sheet that he had passed the Career Service
Professional Examinations with a rating of 83.8%, when in fact he was not in the
Masterlist of Eligibles. The Office of the Court Administrator affirmed the findings of the
CSC-OLA, but recommended the reduction of the penalty from dismissal to suspension
of one year, because:

xxx the fact that respondent has already spent more than twenty (20) years of his life in
the service of this Court and this is his first administrative complaint. It could be that he
committed the acts complained of out of his desire to be promoted for the benefit of his
family. Respondents admission and prayer for forgiveness is a good sign that he is
indeed remorseful for what he did. xxx

Even so, we still ruled that dismissal from the service should be imposed, explaining:

The facts and evidence, coupled with respondents admission, sufficiently established
his culpability. Respondents use of a false certificate of eligibility constitutes an act of
dishonesty under civil service rules and his act of making a false statement in his
personal data sheet renders him administratively liable for falsification. Under Section
23, Rule XIV of the Administrative Code of 1987, dishonesty (par. a) and falsification
(par. f) are considered grave offenses warranting the penalty of dismissal from service
upon commission of the first offense.

On numerous occasions, the Court did not hesitate to impose such extreme punishment
on employees found guilty of these offenses. 37 There is no reason why respondent
should be treated differently. xxx

In the petitioners case, we have more reason to hold that length of service was not
mitigating.1avvphi1 Unlike the respondent in Sta. Ana, she neither owned up to her
dishonesty, nor showed regret for it. The State would surely face greater risks were she
now allowed to continue in public office despite her having been found guilty of
dishonesty.

WHEREFORE, we deny the petition for review on certiorari, and affirm the resolutions
dated September 5, 2002, January 8, 2003, and June 5, 2003, all issued in C.A.-GR SP
No. 72555.

Costs of suit to be paid by the petitioner.

SO ORDERED.

A.M. No. 08-19-SB-J April 12, 2011

ASSISTANT SPECIAL PROSECUTOR III ROHERMIA J. JAMSANI-

RODRIGUEZ, Complainant,
vs.
JUSTICES GREGORY S. ONG, JOSE R. HERNANDEZ, and RODOLFO A.
PONFERRADA, SANDIGANBAYAN, Respondents.

RESOLUTION

BERSAMIN, J.:

We resolve: (a) the Joint Motion for Reconsideration dated September 14, 2010 filed by
respondents Sandiganbayan Associate Justice Gregory S. Ong (Justice Ong) and
Associate Justice Jose R. Hernandez (Justice Hernandez); and (b) the Motion for
Reconsideration (of the Honorable Courts Decision Dated 1 September) dated
September 15, 2010 of the complainant.
Both motions seek the reconsideration of the Decision rendered on August 24, 2010,
albeit on different grounds.

Through the Decision, we found and held Justice Ong and Justice Hernandez liable for
simple misconduct, and disposed against them and Associate Justice Rodolfo A.
Ponferrada (Justice Ponferrada), as follows:

1. ASSOCIATE JUSTICE GREGORY S. ONG is ordered to pay a fine of

15,000.00, with a stern warning that a repetition of the same or similar offense
shall be dealt with more severely;

2. ASSOCIATE JUSTICE JOSE R. HERNANDEZ is admonished with a warning

that a repetition of the same or similar offenses shall be dealt with more severely;
and

3. ASSOCIATE JUSTICE RODOLFO A. PONFERRADA is warned to be more

cautious about the proper procedure to be taken in proceedings before his court. 1

A brief account of the factual antecedents is first given.

The complainant, then an Assistant Special Prosecutor III in the Office of the Special
Prosecutor, filed an affidavit-complaint dated October 23, 2008 charging Justice Ong,
Justice Hernandez and Justice Ponferrada, as the Members of the Fourth Division of
the Sandiganbayan with: (a) grave misconduct, conduct unbecoming a Justice, and
conduct grossly prejudicial to the interest of the service (grounded on their failing to
hear cases as a collegial body during the scheduled sessions of the Fourth Division
held in Davao City on April 24-28, 2006, with Justice Ong hearing cases by himself and
Justice Hernandez and Justice Ponferrada hearing other cases together; and on their
having unreasonably flexed their judicial muscle when she objected to the procedure);
(b) falsification of public documents (grounded on their issuance of orders relative to the
hearings in Davao City, signed by all three of them, that made it appear as if all of them
had been present during the particular hearing acting as a collegial body, when in truth
they were not); (c) improprieties in the hearing of cases that amounted to gross abuse
of judicial authority and grave misconduct (grounded on Justice Ong and Justice
Hernandezs making the following intemperate and discriminatory utterances during the
hearings of their Division in Cebu City sometime in September 2006), to wit:

(a) We are playing Gods here, we will do what we want to do, your contempt is
already out, we fined you eighteen thousand pesos, even if you will appeal, by
that time I will be there, Justice of the Supreme Court. 2;
 (b) You are better than Director Somido? Are you better than Director Chua? Are
you here to supervise Somido? Your office is wasting funds for one prosecutor
who is doing nothing.3;

(c) Just because your son is always nominated by the JBC to Malacaang, you
are acting like that! Do not forget that the brain of the child follows that of their
(sic) mother4; and

(d) Justice Ong often asked lawyers from which law schools they had graduated,
and frequently inquired whether the law school in which Justice Hernandez had
studied and from which he had graduated was better than his (Justice Ongs)
own alma mater.

and (d) manifest partiality and gross ignorance of the law (grounded on the fact that
Criminal Case No. 25801, entitled People v. Puno, was dismissed upon a demurrer to
evidence filed by the accused upon a finding that the assailed contracts subject of the
criminal case had never been perfected contrary to the evidence of the Prosecution, the
dismissal order being signed by all three respondents).

In the Decision of August 24, 2010, we explained as follows:

A.

Respondents Violation of the Provisions of PD 1606 and

Revised Internal Rules of the Sandiganbayan

xxx xxx xxx

We find that the procedure adopted by respondent Justices for their provincial hearings
was in blatant disregard of PD 1606, as amended, the Rules of Court, and the Revised
Internal Rules of the Sandiganbayan. Even worse, their adoption of the procedure
arbitrarily denied the benefit of a hearing before a duly constituted Division of the
Sandiganbayan to all the affected litigants, including the State, thereby rendering the
integrity and efficacy of their proceedings open to serious challenge on the ground that
a hearing before a duly constituted Division of the Sandiganbayan was of the very
essence of the constitutionally guaranteed right to due process of law.

Judges are not common individuals whose gross errors men forgive and time forgets.
They are expected to have more than just a modicum acquaintance with the statutes
and procedural rules. For this reason alone, respondent Justices adoption of the
irregular procedure cannot be dismissed as a mere deficiency in prudence or as a lapse
in judgment on their part, but should be treated as simple misconduct, which is to be
distinguished from either gross misconduct or gross ignorance of the law. The
respondent Justices were not liable for gross misconduct defined as the transgression
of some established or definite rule of action, more particularly, unlawful behavior or
gross negligence, or the corrupt or persistent violation of the law or disregard of well-
known legal rules considering that the explanations they have offered herein, which
the complainant did not refute, revealed that they strove to maintain their collegiality by
holding their separate hearings within sight and hearing distance of one another. Neither
were they liable for gross ignorance of the law, which must be based on reliable
evidence to show that the act complained of was ill-motivated, corrupt, or inspired by an
intention to violate the law, or in persistent disregard of well-known legal rules; on the
contrary, none of these circumstances was attendant herein, for the respondent Justices
have convincingly shown that they had not been ill-motivated or inspired by an intention
to violate any law or legal rule in adopting the erroneous procedure, but had been
seeking, instead, to thereby expedite their disposition of cases in the provinces.

Nonetheless, it remains that the respondent Justices did not ensure that their
proceedings accorded with the provisions of the law and procedure. Their insistence
that they adopted the procedure in order to expedite the hearing of provincial cases is
not a sufficient reason to entirely exonerate them, even if no malice or corruption
motivated their adoption of the procedure. They could have seen that their procedure
was flawed, and that the flaw would prevent, not promote, the expeditious disposition of
the cases by precluding their valid adjudication due to the nullifying taint of the
irregularity. They knew as well that the need to expedite their cases, albeit
recommended, was not the chief objective of judicial trials. As the Court has reminded
judges in State Prosecutors v. Muro, viz:

Although a speedy determination of an action or proceeding implies a speedy trial, it

should be borne in mind that speed is not the chief objective of a trial. Careful and
deliberate consideration for the administration of justice is more important than a race to
end the trial. A genuine respect for the rights of all parties, thoughtful consideration
before ruling on important questions, and a zealous regard for the just administration of
law are some of the qualities of a good trial judge, which are more important than a
reputation for hasty disposal of cases.

xxx xxx xxx

What is required on the part of judges is objectivity. An independent judiciary does not
mean that judges can resolve specific disputes entirely as they please. There are both
implicit and explicit limits on the way judges perform their role. Implicit limits include
accepted legal values and the explicit limits are substantive and procedural rules of law.
The judge, even when he is free, is still not wholly free. He is not to innovate at
pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty
or goodness. He is to draw his inspiration from consecrated principles. He is not to yield
to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a
discretion informed by tradition, methodized by analogy, disciplined by system, and
subordinate to the "primordial necessity of order in the social life."

Relevantly, we do not consider the respondent Justices signing of the orders issued
during the flawed proceedings as a form of falsification or dishonesty, in that they
thereby made it appear that they had all been physically present when the truth was
different. Such act merely ensued from the flawed proceedings and cannot be treated
as a separate offense.

B.

Unbecoming Conduct of Justice Ong and Justice Hernandez

The Court approves the Court Administrators finding and recommendation that no
evidence supported the complainants charge that Justice Ong and Justice Hernandez
had uttered the improper and intemperate statements attributed to them.

A review of the transcripts of the stenographic notes for the hearings in which the
offensive statements were supposedly uttered by them has failed to substantiate the
complainants charge. In the absence of a clear showing to the contrary, the Court must
accept such transcripts as the faithful and true record of the proceedings, because they
bear the certification of correctness executed by the stenographers who had prepared
them.

Even so, Justice Ong and Justice Hernandez admitted randomly asking the counsels
appearing before them from which law schools they had graduated, and their engaging
during the hearings in casual conversation about their respective law schools. They
thereby publicized their professional qualifications and manifested a lack of the requisite
humility demanded of public magistrates. Their doing so reflected a vice of self-conceit.
We view their acts as bespeaking their lack of judicial temperament and decorum, which
no judge worthy of the judicial robes should avoid especially during their performance of
judicial functions. They should not exchange banter or engage in playful teasing of each
other during trial proceedings (no matter how good-natured or even if meant to ease
tension, as they want us to believe). Judicial decorum demands that they behave with
dignity and act with courtesy towards all who appear before their court.
Indeed, Section 6, Canon 6 of the New Code of Judicial Conduct for the Philippine
Judiciary clearly enjoins that:

Section 6. Judges shall maintain order and decorum in all proceedings before the court
and be patient, dignified and courteous in relation to litigants, witnesses, lawyers and
others with whom the judge deals in an official capacity. Judges shall require similar
conduct of legal representatives, court staff and others subject to their influence,
direction or control.

We point out that publicizing professional qualifications or boasting of having studied in

and graduated from certain law schools, no matter how prestigious, might have even
revealed, on the part of Justice Ong and Justice Hernandez, their bias for or against
some lawyers. Their conduct was impermissible, consequently, for Section 3, Canon 4
of the New Code of Judicial Conduct for the Philippine Judiciary, demands that judges
avoid situations that may reasonably give rise to the suspicion or appearance of
favoritism or partiality in their personal relations with individual members of the legal
profession who practice regularly in their courts.

Judges should be dignified in demeanor, and refined in speech. In performing their

judicial duties, they should not manifest bias or prejudice by word or conduct towards
any person or group on irrelevant grounds. It is very essential that they should live up to
the high standards their noble position on the Bench demands. Their language must be
guarded and measured, lest the best of intentions be misconstrued. In this regard,
Section 3, Canon 5 of the New Code of Judicial Conduct for the Philippine Judiciary,
mandates judges to carry out judicial duties with appropriate consideration for all
persons, such as the parties, witnesses, lawyers, court staff, and judicial colleagues,
without differentiation on any irrelevant ground, immaterial to the proper performance of
such duties.

In view of the foregoing, Justice Ong and Justice Hernandez were guilty of unbecoming
conduct, which is defined as improper performance. Unbecoming conduct "applies to a
broader range of transgressions of rules not only of social behavior but of ethical
practice or logical procedure or prescribed method."

C.

Respondent Justices Not Guilty of Manifest Partiality

The charge of manifest partiality for issuing the resolution granting the demurrer to
evidence of the accused in Criminal Case No. 25801 is dismissed. As already
mentioned, this Court upheld the assailed resolution on June 5, 2006 in G. R. No.
171116 by declaring the petition of the Office of the Special Prosecutor assailing such
dismissal to have "failed to sufficiently show that the Sandiganbayan had committed any
reversible error in the questioned judgment to warrant the exercise by this Court of its
discretionary appellate jurisdiction."

In their Joint Motion for Reconsideration, Justice Ong and Justice Hernandez make it
clear that they:

[A]ccept with all humility, and therefore, will no longer contest the Honorable Courts
finding that the proceedings they had adopted in their provincial hearings fell short of
what the provisions of the law and rules require. For such shortcoming, respondents
Ong and Hernandez can only express their regret and apology.

Nonetheless, Justice Ong and Justice Hernandez pray for exoneration, contending that
they are not liable for simple misconduct despite the irregularity of their conduct for the
simple reason that, as the Decision has indicated, they "have not been ill-motivated or
inspired by an intention to violate any law or legal rules in adopting the erroneous
procedure, but had been seeking, instead, to thereby expedite their disposition of cases
in the provinces;" their actions were not willful in character or motivated by a
"premeditated, obstinate or intentional purpose;" or even if their actions might be
"irregular, wrongful, or improper," such could not be characterized as simple misconduct
necessitating administrative sanction.

Also, Justice Ong and Justice Hernandez posit that they cannot be made accountable
for unbecoming conduct because they admittedly posed questions on the law schools of
origin of the counsel appearing before them; that their propounding the queries, per se,
did not justify a finding of unbecoming conduct on their part considering that they
thereby never derided any law school or belittled the capabilities of lawyers on the basis
of their school affiliations, nor exhibited bias for or against any lawyer based on their
alma mater.1avvphi1

In the alternative, Justice Ong prays that the sanction imposed upon him be made equal
to that meted on Justice Hernandez. He "implores the Honorable Court to re-examine
the propriety of imposing a different and heavier penalty against him and take into due
consideration its own pronouncement in its decision that the Sandiganbayan is a
collegial court, and in a collegial court, the members act on the basis of consensus or
majority rule."

For her part, the complainant insists that respondent Justices be found guilty of all
administrative charges made against them; and that the penalties or chastisement be
increased to be commensurate to their infractions.
Ruling

Finding the arguments of the complainant to be matters that the Court fully dealt with
and discussed in the Decision, and there being no other substantial matters raised by
her, we deny her Motion for Reconsideration (of the Honorable Courts Decision Dated 1
September).

We deny the plea of Justice Ong and Justice Hernandez for complete exoneration,
considering what we held in the Decision, which we reiterate hereunder, as follows:

Respondent Justices cannot lightly regard the legal requirement for all of them to sit
together as members of the Fourth Division "in the trial and determination of a case or
cases assigned thereto." The information and evidence upon which the Fourth Division
would base any decisions or other judicial actions in the cases tried before it must be
made directly available to each and every one of its members during the proceedings.
This necessitates the equal and full participation of each member in the trial and
adjudication of their cases. It is simply not enough, therefore, that the three members of
the Fourth Division were within hearing and communicating distance of one another at
the hearings in question, as they explained in hindsight, because even in those
circumstances not all of them sat together in session.

Indeed, the ability of the Fourth Division to function as a collegial body became
impossible when not all of the members sat together during the trial proceedings. The
internal rules of the Sandiganbayan spotlight an instance of such impossibility. Section
2, Rule VII of the Revised Internal Rules of the Sandiganbayan expressly requires that
rulings on oral motions made or objections raised in the course of the trial proceedings
or hearings are be made by the Chairman of the Division. Obviously, the rule cannot be
complied with because Justice Ong, the Chairman, did not sit in the hearing of the
cases heard by the other respondents. Neither could the other respondents properly
and promptly contribute to the rulings of Justice Ong in the hearings before him.

Moreover, the respondents non-observance of collegiality contravened the very

purpose of trying criminal cases cognizable by Sandiganbayan before a Division of all
three Justices. Although there are criminal cases involving public officials and
employees triable before single-judge courts, PD 1606, as amended, has always
required a Division of three Justices (not one or two) to try the criminal cases cognizable
by the Sandiganbayan, in view of the accused in such cases holding higher rank or
office than those charged in the former cases. The three Justices of a Division, rather
than a single judge, are naturally expected to exert keener judiciousness and to apply
broader circumspection in trying and deciding such cases. The tighter standard is due in
part to the fact that the review of convictions is elevated to the Supreme Court generally
via the discretionary mode of petition for review on certiorari under Rule 45, Rules of
Court, which eliminates issues of fact, instead of via ordinary appeal set for the former
kind of cases (whereby the convictions still undergo intermediate review before
ultimately reaching the Supreme Court, if at all).

In GMCR, Inc. v. Bell Telecommunication Philippines, Inc., the Court delved on the
nature of a collegial body, and how the act of a single member, though he may be its
head, done without the participation of the others, cannot be considered the act of the
collegial body itself. There, the question presented was whether Commissioner Simeon
Kintanar, as chairman of the National Telecommunications Commission (NTC), could
alone act in behalf of and bind the NTC, given that the NTC had two other
commissioners as members. The Court ruled:

First. We hereby declare that the NTC is a collegial body requiring a majority vote out
of the three members of the commission in order to validly decide a case or any
incident therein. Corollarily, the vote alone of the chairman of the commission, as
in this case, the vote of Commissioner Kintanar, absent the required concurring
vote coming from the rest of the membership of the commission to at least arrive
at a majority decision, is not sufficient to legally render an NTC order, resolution
or decision.

Simply put, Commissioner Kintanar is not the National Telecommunications

Commission. He alone does not speak for and in behalf of the NTC. The NTC acts
through a three-man body, and the three members of the commission each has one
vote to cast in every deliberation concerning a case or any incident therein that is
subject to the jurisdiction of the NTC. When we consider the historical milieu in which
the NTC evolved into the quasi-judicial agency it is now under Executive Order No. 146
which organized the NTC as a three-man commission and expose the illegality of all
memorandum circulars negating the collegial nature of the NTC under Executive Order
No. 146, we are left with only one logical conclusion: the NTC is a collegial body and
was a collegial body even during the time when it was acting as a one-man regime.

The foregoing observations made in GMCR, Inc. apply to the situation of respondent
Justices as members of the Fourth Division. It is of no consequence, then, that no
malice or corrupt motive impelled respondent Justices into adopting the flawed
procedure. As responsible judicial officers, they ought to have been well aware of the
indispensability of collegiality to the valid conduct of their trial proceedings.

As to the argument of Justice Ong and Justice Hernandez against this Courts finding of
unbecoming conduct on their part, the matter has been fully addressed in the Decision
of August 24, 2010.
We hold to be not well taken the urging of Justice Ong that the penalty imposed upon
him be similar to that meted upon Justice Hernandez.

The variance in the responsibilities of respondent Justices as Members of their Division

compel the differentiation of their individual liabilities. Justice Ong, as the Chairperson,
was the head of the Division under the Internal Rules of the Sandiganbayan, being the
most senior Member, and, as such, he possessed and wielded powers of supervision,
direction, and control over the conduct of the proceedings of the Division. This
circumstance alone provided sufficient justification to treat Justice Ong differently from
the other respondents.

Moreover, we have noted in the Decision that in the exercise of his powers as Chairman
of the Fourth Division, Justice Ong exuded an

unexpectedly dismissive attitude towards the valid objections of the complainant, and
steered his Division into the path of procedural irregularity; and wittingly failed to
guarantee that proceedings of the Division that he chaired came within the bounds of
substantive and procedural rules. To be sure, Justice Hernandez and Justice
Ponferrada did not direct and control how the proceedings of the Division were to be
conducted. Their not being responsible for the direction and control of the running of the
Division and their having relied without malice on the Justice Ongs direction and control
should not be reproved as much as Justice Ongs misconduct. Hence, their
responsibility and liability as Members of the Division were properly diminished.

WHEREFORE, the Motion for Reconsideration (of the Honorable Courts Decision
Dated 1 September) dated September 15, 2010 of complainant Assistant Special
Prosecutor III Rohermia J. Jamsani-Rodriguez; and the Joint Motion for
Reconsideration dated September 14, 2010 of Associate Justice Gregory S. Ong and
Associate Justice Jose R. Hernandez are denied for lack of merit.

SO ORDERED.
G.R. No. 171268 September 14, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
BRINGAS BUNAY y DAM-AT, Accused-Appellant.

RESOLUTION

BERSAMIN, J.:

The Regional Trial Court (RTC), Branch 26, in Luna, Apayao tried and found the
accused guilty of qualified rape in its decision dated December 11, 2001, the decretal
portion of which reads:

WHEREFORE, finding the accused, BRINGAS BUNAY y DAM-AT guilty beyond

reasonable doubt of the crime of Rape as charged against him, this court hereby
sentences said accused to suffer the Supreme Penalty of DEATH.
The accused is further ordered to pay the victim, "AAA", the amount of Seventy Five
Thousand (P75,000.00) by way of civil indemnity plus exemplary and moral damages of
Sixty Thousand Pesos (P60,000.00).

The accused is ordered to be immediately shipped to New Bilibid Prisons, Muntinlupa

City, for imprisonment thereat while awaiting the review of this decision by the Supreme
Court.

IT IS SO ORDERED.1

On December 13, 2001, the accused was committed to the New Bilibid Prison in
Muntinlupa City, per the certification issued on August 14, 2002 by the Director of the
Bureau of Corrections.2

The conviction was brought for automatic review, but the Court transferred the case to
the CA for intermediate review on November 9, 2004, 3 conformably with People v.
Mateo.4

On August 10, 2005, the Court of Appeals (CA) affirmed the conviction of the accused
for qualified rape in C.A.-G.R. No. CR HC No. 00758,5 viz:

IN LIGHT OF THE FOREGOING, the assailed Decision of the Regional Trial Court of
Luna, Apayao, Branch 26 in Criminal Case No. 5-2001 is hereby AFFIRMED.

SO ORDERED.

Following the CAs denial of his motion for reconsideration, the accused now appeals to
the Court.

On April 20, 2010, the Court received the letter dated April 15, 2010 from Bureau of
Corrections Assistant Director for Operations Rodrigo A. Mercado, advising that the
accused had died on March 25, 2010 at the New Bilibid Prison Hospital in Muntinlupa
City. The report of Dr. Marylou V. Arbatin, Medical Officer III, revealed that the
immediate cause of death had been cardio-respiratory arrest, with pneumonia as the
antecedent cause.

On June 22, 2010, the Court required the Bureau of Corrections to submit a certified
true copy of the death certificate of the accused.1avvphi1

By letter dated August 16, 2010, Armando T. Miranda, Chief Superintendent of the New
Bilibid Prison, submitted the death certificate of the accused.
Under the foregoing circumstances, the death of the accused during the pendency of
his appeal in this Court totally extinguished his criminal liability. Such extinction is based
on Article 89 of the Revised Penal Code, which pertinently provides:

Article 89. How criminal liability is totally extinguished. Criminal liability is totally
extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary

penalties, liability therefor is extinguished only when the death of the offender occurs
before final judgment.

xxx

The death of the accused likewise extinguished the civil liability that was based
exclusively on the crime for which the accused was convicted (i.e., ex delicto), because
no final judgment of conviction was yet rendered by the time of his death. Only civil
liability predicated on a source of obligation other than the delict survived the death of
the accused, which the offended party can recover by means of a separate civil action. 6

UPON THE FOREGOING CONSIDERATIONS, the appeal of the accused is dismissed,

and this criminal case is considered closed and terminated.

SO ORDERED.