The Legal Standing of the Petitioner & The Legal Propriety of this Petition 1.

Petitioner is filing this suit as a citizen of the Republic of the Philippines who believes that there is a compelling interest to intervene, on the basis of the Constitution, in the current controversy arising from the designation of the next Chief Justice because this issue has far-reaching implication in the pursuit of judicial independence, in particular, and carries

transcendental significance in the life of this nation, in general.

2. Petitioner is also suing as a taxpayer inasmuch as the continuing proceedings of the respondent Judicial and Bar Council would involve the unnecessary, if not illegal, disbursement (i. e. for publication and meetings and the like) of public funds and/or taxpayers' money, because as will be explained and argued hereunder the process is not in accordance with the Constitution,

3. Petitioner is also suing as a member of the Philippine Bar and as an officer of the court with a solemn duty to participate in the development of the legal system by initiating or supporting efforts in law reform and in the improvement of the administration of justice1

4. Respondent Judicial and Bar Council is being impleaded in its official capacity being the constitutional body created by the Constitution to prepare the list of at least three nominees, from which the President of the Philippines shall appoint the Members of the Supreme Court in case of

Canon 4, Code of Professional Responsibility

vacancy2. For the service of legal processes and notices, respondent's office is at 2nd Floor, Centennial Bldg., Supreme Court, Padre Faura, Manila, Philippines 1000

5. Petitioner is compelled to initiate this petition against this respondent before this Honorable Court by invoking its concurrent and original jurisdiction over petitions for prohibition under the Constitution3 because the Judicial and Bar Council is a constitutional body under it4.

Brief Statement of Facts 1. The facts of this case is matter that this Honorable Court has judicial notice and full knowledge of.

2. But essentially for purposes of this petition, the incumbent Chief Justice is set to retire on 17 May 2010 and consequently respondent, in its en banc meeting of 18 January 2010, unanimously agreed to start the process of filling up the position of Chief Justice x x x5

3. Some individuals and Members of this Honorable Court actually manifested and expressed interest to the respondent to be included in the list of nominees to be submitted to the respondent.

2 3 4 5

Sec. 8 and 9, Art. VIII, Constitution Sec. 5 (1), Art. VIII, Constitution Sec. 8 (4) and (5), Art. VIII, ibid. http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf [accessed: 8 February 2010]

4. On 11 January 2010, petitioner official wrote the Honorable Chief Justice, copy furnished the Members of this Honorable Court expressing his modest legal opinion that the Chief Justice should be chosen by the Supreme Court en banc in accordance with the Constitution and not by appointment of the President (present or future) from a list to be submitted by the respondent. In reply, petitioner received a letter dated 19 January 2010 stating that petitioner's suggestion was referred-endorsed to the respondent and the letter was duly NOTED by the JBC during its en banc meeting on 18 January 2010. Original copies of these letters are hereto attached in the original copy of this petition as Annexes A and B .

5. With the official announcement of the respondent that it has unanimously agreed in an en banc meeting held on 18 January 2010 to start the search, nomination and selection process to fill up the post to be vacated by the current Chief Justice on 17 May 2010, it necessarily follows that respondent has already set aside petitioner's submission. Hence, petitioner is constrained to file this action invoking this Honorable Court's power of judicial review.

Constitutional Ground and Arguments in Support of this Petition 1. The power to appoint the Chief Justice is not vested with the President of the Philippines but with the Supreme Count en banc under the Constitution.

a) The power of appointment of the President under the Constitution is expressed in this wise: The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive department, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointment are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or involuntary, but such appointments shall be effective only until after disapproval by the Commission on appointments or until the next adjournment of the Congress.6 (underscoring and emphasis supplied) b) The Constitution also provides: Sec. 5. The Supreme Court shall have the following powers: xxxxxx (6) Appoint all officials and employees of the judiciary in accordance with the Civil Service Law.7 (underscoring and emphasis supplied) And compared to the Constitution of the United States where judicial practices in this jurisdiction are patterned, such provision does not exist in the American fundamental law, and is therefore unique in ours.

6 7

Sec. 16, Art. VII, Constitution Art. VIII, ibid

c) An official is someone who holds or invested with an authority or office and there appears to be no doubt that the position of Chief Justice is considered or deemed as an official of the judiciary, its highest official in fact. The Chief Justice is not the Supreme Court, and so are the individual members of the High Court. The Chief Justice is plainly an official of the judiciary in charge of its day-to-day functions being the head of the third branch of government. The Chief Justice alone does not exercise judicial power.

d) Under the above-quoted constitutional provision, the President may exercise the appointing power only to offices (1) whose appointment is vested to him by law or the Constitution, and (2) whose appointment is not otherwise provided for by law. But curiously in the case of officers or 'officials' of the judiciary, which includes the post of Chief Justice, the power to appoint is expressly vested by the Constitution as above-quoted to the Supreme Court, thereby removing that power from the ambit of presidential authority.

e) In fact, this interpretation is consistent and in accord with the constitutional mandate of the respondent Judicial and Bar Council which says: 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.8 Clearly, the appointing authority of the President is limited to the Members or the Associate Justices of this Honorable Supreme Court, and not to the position of Chief Justice. Consequently, the only time respondent may intervene in the search, selection and nomination process of the Chief Justice is when the individual or person being sought for the position by the Supreme Court is not yet a member or associate justice of the High Court. But respondent's proceedings consistent with the afore-quoted constitutional provision is only for the purpose of making such person or individual a member of this Honorable Court, in order to qualify him or her to be appointed as a Chief Justice by this Honorable Court.

f) Thus, the respondent Judicial and Bar Council committed grave abuse of discretion amounting to lack of or in excess of its jurisdiction when it resolved unanimously on 18 January 2010 to open the search, nomination, and selection process for the position of Chief Justice upon the retirement of the Honorable Reynato S. Puno on 17 May 2010 for the purpose of submitting a list of nominees for appointment by the President. Respondent is bereft of such authority under the Constitution.

g) Under the Rules of Court, (W)hen the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasijudicial or ministerial functions, are without or in excess of its or his

Sec. 9, Art. VIII, Constitution

jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require.9

2. The exercise of the Supreme Court to appoint its own Chief Justice is consistent with the principles of separation of powers and would best serve the integrity and independence of the judicial branch of government.

a) As a branch of government, the House of Representatives selects its own Speaker and the Senate elects its own President from among its members. The President of the Philippines being elected by the people heads the executive branch and appoints all the officials and officers within his hierarchy. And this is in keeping with the doctrine of separation of powers that guides the political structures and hierarchy of our State under the Constitution.

b) By asserting its authority under the Constitution to appoint its own Chief Justice consistent with the doctrine of separation of powers, this
9

Sec. 2, Rule 65

Honorable Court is able to preserve the integrity and independence of the judiciary, and more importantly would free or perhaps insulate itself from the disceptation of politics.

c) In favorably resolving this petition in accordance with the Constitution, the Honorable Court would also spare itself from any or all legal, constitutional and political controversies, that is whether or not the appointment should be done by the incumbent President or the President -Elect after the May 2010 elections - which only serve to undermine judicial independence and integrity.

Arguments in Support of Prayer for Injunctive Relief 1. Petitioner re-pleads by reference the foregoing allegations as integral part of this arguments.

2. Pending determination of this petition by this Honorable Court, it is imperative that a temporary restraining order, a writ of preliminary injunction and/or a stay order be issued against respondent Judicial and Bar Council enjoining it from further proceedings with the search, selection and nomination process for the position of Chief Justice upon the retirement of the Honorable Reynato S. Puno on 17 May 2010.

3. Petitioner is entitled to the relief demanded, and the whole or part of such relief consists in restraining and prohibiting public respondent from

proceeding with the search, selection and nomination process for the position of Chief Justice because its official action contravenes the Constitution as earlier explained.

4. The fact that respondent unanimously approved on 18 January 2010 to commence deliberation or proceedings on the nomination process might render this petition moot and academic especially if a list of nominees is submitted in due course to the incumbent President.

5. Verily, respondent's proceeding is a violation of the Constitution because it arrogated upon itself a power exclusively vested to this Honorable Court, and therefore should be enjoined immediately.

Closing Statement In filing this petition, petitioner is reminded of the thoughts of Thomas Jefferson when he said centuries ago that: "The judiciary... is a body which, if rendered independent and kept strictly to their own department, merits great confidence for their learning and integrity."10 "The dignity and stability of government in all its branches, the morals of the people and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive and independent upon both, that so it may be a check upon both, as both should be checks upon that." 11 I beg this Honorable Court to assert its judicial supremacy and re-define our constitutional history in the appointment of its Chief Justice.

10

Addressed to James Madison, 1789. ME 7:309 Addressed to George Wythe, 1776. Papers 1:410

11

PRAYER ACCORDINGLY, it is most respectfully prayed of this Honorable Court, that