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.
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.
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.
Endnotes:
1 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, A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.
2 Price & Bitner, Effective Legal Research, Little, Brown & Co., New York (1962), § 9.7.
3 Caltex (Phil.), Inc. v. Palomar, No. L-19650, September 29, 1966, 18 SCRA 247
4 E.g., Dias, Jurisprudence, Butterworths, London, 1985, Fifth Edition, p. 127.
5 Limketkai Sons Milling, Inc. v. Court of Appeals, G.R. No. 118509, September 5, 1996, 261 SCRA 464.
6 See Calabresi, A Common Law for the Age of Statutes, Harvard University Press, p. 4 (1982) and endnote 12 of the page, which essentially recounts that the strict application of the doctrine of stare decisis is true only in a common-law jurisdiction like England (citing Wise, The Doctrine of Stare Decisis, 21 Wayne Law Review, 1043, 1046-1047 (1975). Calabresi recalls that the English House of Lords decided in 1898 (London Tramways Co. v. London County Council, A.C. 375) that they could not alter precedents laid down by the House of Lords acting as the supreme court in previous cases, but that such precedents could only be altered by an Act of Parliament, for to do otherwise would mean that the courts would usurp legislative function; he mentions that in 1966, Lord Chancellor Gardiner announced in a Practice Statement a kind of general memorandum from the court that while: "Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law," they "nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so." (Calabresi cites Leach, Revisionism in the House of Lords: The Bastion of Rigid Stare Decisis Falls, 80 Harvard Law Review, 797 (1967).
7 Section 4 (2), Article VIII, provides:xxx
(3) Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc; Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.
8 Record of the 1986 Constitutional Commission, Vol. 2, July 31, 1986, RCC No. 44. pp. 542-543.
9 Smith v. State, 66 Md. 215, 7 Atl. 49.
10 State ex rel Everding v. Simon, 20 Ore. 365, 26 Pac. 170.DISSENTING OPINION
CARPIO MORALES, J.:
No compelling reason exists for the Court to deny a reconsideration of the assailed Decision. The various motions for reconsideration raise hollering substantial arguments and legitimately nagging questions which the Court must meet head on.
If this Court is to deserve or preserve its revered place not just in the hierarchy but also in history, passion for reason demands the issuance of an extended and extensive resolution that confronts the ramifications and repercussions of its assailed Decision. Only then can it offer an illumination that any self-respecting student of the law clamors and any adherent of the law deserves. Otherwise, it takes the risk of reeking of an objectionable air of supreme judicial arrogance.
It is thus imperative to settle the following issues and concerns:
Whether the incumbent President is
constitutionally proscribed from
appointing the successor of Chief
Justice Reynato S. Puno upon
his retirement on May 17, 2010 until
the ban ends at 12:00 noon of
June 30, 2010
1. In interpreting the subject constitutional provisions, the Decision disregarded established canons of statutory construction. Without explaining the inapplicability of each of the relevant rules, the Decision immediately placed premium on the arrangement and ordering of provisions, one of the weakest tools of construction, to arrive at its conclusion.
2. In reversing Valenzuela, the Decision held that the Valenzuela dictum did not firmly rest on ConCom deliberations, yet it did not offer to cite a material ConCom deliberation. It instead opted to rely on the memory of Justice Florenz Regalado which incidentally mentioned only the"Court of Appeals." The Decision's conclusion must rest on the strength of its own favorable Concom deliberation, none of which to date has been cited.
3. Instead of choosing which constitutional provision carves out an exception from the other provision, the most legally feasible interpretation (in the limited cases of temporary physical or legal impossibility of compliance, as expounded in my Dissenting Opinion) is to consider the appointments ban or other substantial obstacle as a temporary impossibility which excuses or releases the constitutional obligation of the Office of the President for the duration of the ban or obstacle.
In view of the temporary nature of the circumstance causing the impossibility of performance, the outgoing President is released from non-fulfillment of the obligation to appoint, and the duty devolves upon the new President. The delay in the fulfillment of the obligation becomes excusable, since the law cannot exact compliance with what is impossible. The 90-day period within which to appoint a member of the Court is thus suspended and the period could only start or resume to run when the temporary obstacle disappears (i.e., after the period of the appointments ban; when there is already a quorum in the JBC; or when there is already at least three applicants).
Whether the Judicial and Bar Council is obliged to submit to the President the shortlist of nominees for the position of Chief Justice (or Justice of this Court) on or before the occurrence of the vacancy.
1. The ruling in the Decision that obligates the JBC to submit the shortlist to the President on or before the occurrence of the vacancy in the Court runs counter to the Concom deliberations which explain that the 90-day period is allotted for both the nomination by the JBC and the appointment by the President. In the move to increase the period to 90 days, Commissioner Romulo stated that"[t]he sense of the Committee is that 60 days is awfully short and that the [Judicial and Bar] Council, as well as the President, may have difficulties with that."
2. To require the JBC to submit to the President a shortlist of nominees on or before the occurrence of vacancy in the Court leads to preposterous results. It bears reiterating that the requirement is absurd when, inter alia, the vacancy is occasioned by the death of a member of the Court, in which case the JBC could never anticipate the death of a Justice, and could never submit a list to the President on or before the occurrence of vacancy.
3. The express allowance in the Constitution of a 90-day period of vacancy in the membership of the Court rebuts any public policy argument on avoiding a vacuum of even a single day without a duly appointed Chief Justice. Moreover, as pointed out in my Dissenting Opinion, the practice of having an acting Chief Justice in the interregnum is provided for by law, confirmed by tradition, and settled by jurisprudence to be an internal matter.
The Resolution of the majority, in denying the present Motions for Reconsideration, failed to rebut the foregoing crucial matters.
I, therefore, maintain my dissent and vote to GRANT the Motions for Reconsideration of the Decision of March 17, 2010 insofar as it holds that the incumbent President is not constitutionally proscribed from appointing the successor of Chief Justice Reynato S. Puno upon his retirement on May 17, 2010 until the ban ends at 12:00 noon of June 30, 2010 and that the Judicial and Bar Council is obliged to submit to the President the shortlist of nominees for the position of Chief Justice on or before May 17, 2010.
BRION, J.:
The Motions for Reconsideration
After sifting through the motions for reconsideration, I found that the arguments are largely the same arguments that we have passed upon, in one form or another, in the various petitions. Essentially, the issues boil down to justiciability; the conflict of constitutional provisions; the merits of the cited constitutional deliberations; and the status and effect of the Valenzuela1 ruling. Even the motion for reconsideration of the Philippine Bar Association (G.R. No. 191420), whose petition I did not expressly touch upon in my Separate Opinion, basically dwells on these issues.
I have addressed most, if not all, of these issues and I submit my Separate Opinion2 as my basic response to the motions for reconsideration, supplemented by the discussions below.
As I reflected in my Separate Opinion (which three other Justices joined),3 the election appointment ban under Article VII, Section 15 of the Constitution should not apply to the appointment of Members of the Supreme Court whose period for appointment is separately provided for under Article VIII, Section 4(1). I shared this conclusion with the Court's Decision although our reasons differed on some points.
I diverged fully from the Decision on the question of whether we should maintain or reverse our ruling in Valenzuela. I maintained that it is still good law; no reason exists to touch the ruling as its main focus - the application of the election ban on the appointment of lower court judges under Article VIII, Section 9 of the Constitution - is not even an issue in the present case and was discussed only because the petitions incorrectly cited the ruling as authority on the issue of the Chief Justice's appointment. The Decision proposed to reverse Valenzuela but only secured the support of five (5) votes, while my Separate Opinion in support of Valenzuela had four (4) votes. Thus, on the whole, the Decision did not prevail in reversing Valenzuela, as it only had five (5) votes in a field of 12 participating Members of the Court. Valenzuela should therefore remain, as of the filing of this Opinion, as a valid precedent.
Acting on the present motions for reconsideration, I join the majority in denying the motions with respect to the Chief Justice issue, although we differ in some respects on the reasons supporting the denial. I dissent from the conclusion that the Valenzuela ruling should be reversed. My divergence from the majority's reasons and conclusions compels me to write this Concurring and Dissenting Opinion.
The Basic Requisites / Justiciability
One marked difference between the Decision and my Separate Opinion is our approach on the basic requisites/justiciability issues. The Decision apparently glossed over this aspect of the case, while I fully explained why the De Castro4 and Peralta5 petitions should be dismissed outright. In my view, these petitions violated the most basic requirements of their chosen medium for review - a petition for certiorari and mandamus under Rule 65 of the Rules of Court.
The petitions commonly failed to allege that the Judicial and Bar Council (JBC) performs judicial or quasi-judicial functions, an allegation that the petitions could not really make, since the JBC does not really undertake these functions and, for this reason, cannot be the subject of a petition for certiorari; hence, the petitions should be dismissed outright. They likewise failed to facially show any failure or refusal by the JBC to undertake a constitutional duty to justify the issuance of a writ of mandamus; they invoked judicial notice that we could not give because there was, and is, no JBC refusal to act.6 Thus, the mandamus aspects of these petitions should have also been dismissed outright. The ponencia, unfortunately, failed to fully discuss these legal infirmities.
The motions for reconsideration lay major emphasis on the alleged lack of an actual case or controversy that made the Chief Justice's appointment a justiciable issue. They claim that the Court cannot exercise the power of judicial review where there is no clash of legal rights and interests or where this clash is merely anticipated, although the anticipated event shall come with certainty.7
What the movants apparently forgot, focused as they were on their respective petitions, is that the present case is not a single-petition case that rises or falls on the strength of that single petition. The present case involves various petitions and interventions,8 not necessarily pulling towards the same direction, although each one is focused on the issue of whether the election appointment ban under Article VII, Section 15 of the Constitution should apply to the appointment of the next Chief Justice of the Supreme Court.
Among the petitions filed were those of Tolentino (G.R. No. 191342), Soriano (G.R. No. 191032) and Mendoza (A.M. No. 10-2-5-SC). The first two are petitions for prohibition under Section 2 of Rule 65 of the Rules of Court.9 While they commonly share this medium of review, they differ in their supporting reasons. The Mendoza petition, on the other hand, is totally different - it is a petition presented as an administrative matter (A.M.) in the manner that the Valenzuela case was an A.M. case. As I pointed out in the Separate Opinion, the Court uses the A.M. docket designation on matters relating to its exercise of supervision over all courts and their personnel.10 I failed to note then, but I make of record now, that court rules and regulations - the outputs in the Court's rulemaking function - are also docketed as A.M. cases.
That an actual case or controversy involving a clash of rights and interests exists is immediately and patently obvious in the Tolentino and Soriano petitions. At the time the petitions were filed, the JBC had started its six-phase nomination process that would culminate in the submission of a list of nominees to the President of the Philippines for appointive action. Tolentino and Soriano - lawyers and citizens with interest in the strict observance of the election ban - sought to prohibit the JBC from continuing with this process. The JBC had started to act, without any prodding from the Court, because of its duty to start the nomination process but was hampered by the petitions filed and the legal questions raised that only the Supreme Court can settle with finality.11 Thus, a clash of interests based on law existed between the petitioners and the JBC. To state the obvious, a decision in favor of Tolentino or Soriano would result in a writ of prohibition that would direct the JBC not to proceed with the nomination process.
The Mendoza petition cited the effect of a complete election ban on judicial appointments (in view of the already high level of vacancies and the backlog of cases) as basis, and submitted the question as an administrative matter that the Court, in the exercise of its supervisory authority over the Judiciary and the JBC itself, should act upon. At the same time, it cited the "public discourse and controversy" now taking place because of the application of the election ban on the appointment of the Chief Justice, pointing in this regard to the very same reasons mentioned in Valenzuela about the need to resolve the issue and avoid the recurrence of conflict between the Executive and the Judiciary, and the need to "avoid polemics concerning the matter."12
I recognized in the Separate Opinion that, unlike in Valenzuela where an outright defiance of the election ban took place, no such obvious triggering event transpired in the Mendoza petition.13 Rather, the Mendoza petition looked to the supervisory power of the Court over judicial personnel and over the JBC as basis to secure a resolution of the election ban issue. The JBC, at that time, had indicated its intent to look up to the Court's supervisory power and role as the final interpreter of the Constitution to guide it in responding to the challenges it confronts.14 To me, this was "a point no less critical, from the point of view of supervision, than the appointment of the two judges during the election ban period in Valenzuela."15
In making this conclusion, I pointed out in my Separate Opinion the unavoidable surrounding realities evident from the confluence of events, namely: (1) an election to be held on May 10, 2010; (2) the retirement of the Chief Justice on May 17, 2010; (3) the lapse of the terms of the elective officials from the President to the congressmen on June 30, 2010; (4) the delay before the Congress can organize and send its JBC representatives; and (5) the expiration of the term of a non-elective JBC member in July 2010.16 All these - juxtaposed with the Court's supervision over the JBC, the latter's need for guidance, and the existence of an actual controversy on the same issues bedeviling the JBC - in my view, were sufficient to save the Mendoza petition from being a mere request for opinion or a petition for declaratory relief that falls under the jurisdiction of the lower court. This recognition is beyond the level of what this Court can do in handling a moot and academic case - usually, one that no longer presents a judiciable controversy but one that can still be ruled upon at the discretion of the court when the constitutional issue is of paramount public interest and controlling principles are needed to guide the bench, the bar and the public.17
To be sure, this approach in recognizing when a petition is actionable is novel. An overriding reason for this approach can be traced to the nature of the petition, as it rests on the Court's supervisory authority and relates to the exercise of the Court's administrative rather than its judicial functions (other than these two functions, the Court also has its rulemaking function under Article VIII, Section 5(5) of the Constitution). Strictly speaking, the Mendoza petition calls for directions from the Court in the exercise of its power of supervision over the JBC,18 not on the basis of the power of judicial review.19 In this sense, it does not need the actual clash of interests of the type that a judicial adjudication requires. All that must be shown is the active need for supervision to justify the Court's intervention as supervising authority.
Under these circumstances, the Court's recognition of the Mendoza petition was not an undue stretch of its constitutional powers. If the recognition is unusual at all, it is so only because of its novelty; to my knowledge, this is the first time ever in Philippine jurisprudence that the supervisory authority of the Court over an attached agency has been highlighted in this manner. Novelty, per se, however, is not a ground for objection nor a mark of infirmity for as long as the novel move is founded in law. In this case, as in the case of the writ of amparo and habeas data that were then novel and avowedly activist in character, sufficient legal basis exists to actively invoke the Court's supervisory authority - granted under the Constitution, no less - as basis for action.
To partly quote the wording of the Constitution, Article VIII, Section 8(1) and (5) provide that "A Judicial and Bar Council is hereby created under the supervision of the Supreme Court... It may exercise such other functions and duties as the Supreme Court may assign to it." Supervision, as a legal concept, more often than not, is defined in relation with the concept of control.20 In Social Justice Society v. Atienza,21 we defined "supervision" as follows:
[Supervision] means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer ha[s] done in the performance of his duties and to substitute the judgment of the former for that of the latter.
The importance of the presence of one Member of the Court can and should never be underestimated, particularly on issues that may gravely affect the nation. Many a case has been won or lost on the basis of one vote. On an issue of the constitutionality of a law, treaty or statute, a tie vote - which is possible in a 14 member court - means that the constitutionality is upheld. This was our lesson in Isagani Cruz v. DENR Secretary.
More than the vote, Court deliberation is the core of the decision-making process and one voice is less is not only a vote less but a contributed opinion, an observation, or a cautionary word less for the Court. One voice can be a big difference if the missing voice is that of the Chief Justice.
Without meaning to demean the capability of an Acting Chief Justice, the ascendancy in the Court of a permanent sitting Chief Justice cannot be equaled. He is the first among equals - a primus inter pares - who sets the tone for the Court and the Judiciary, and who is looked up to on all matters, whether administrative or judicial. To the world outside the Judiciary, he is the personification of the Court and the whole Judiciary. And this is not surprising since, as Chief Justice, he not only chairs the Court en banc, but chairs as well the Presidential Electoral Tribunal that sits in judgment over election disputes affecting the President and the Vice-President. Outside of his immediate Court duties, he sits as Chair of the Judicial and Bar Council, the Philippine Judicial Academy and, by constitutional command, presides over the impeachment of the President. To be sure, the Acting Chief Justice may be the ablest, but he is not the Chief Justice without the mantle and permanent title of the Office, and even his presence as Acting Chief Justice leaves the Court with one member less. Sadly, this member is the Chief Justice; even with an Acting Chief Justice, the Judiciary and the Court remains headless. 35
Endnotes:
1 A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408. This A.M. involves the constitutional validity of the appointment of two (2) RTC Judges on March 30, 1998 - a date that falls within the supposed ban under Section 15, Article VII of the Constitution. We nullified the appointments.
2 G.R. No. 191002 and companion cases, promulgated on March 17, 2010.
3 Justices Diosdado M. Peralta, Mariano C. Del Castillo and Jose Catral Mendoza.
4 G.R. No. 191002, Petition for Certiorari and Mandamus.
5 G.R. No. 191149, Petition for Certiorari and Mandamus.
6 The JBC reiterates its position in its Comment (dated April 12, 2010) on the motions for reconsideration that it is still acting on the preparation of the list of nominees and is set to interview the nominees.
7 See, for instance, the motion for reconsideration of intervenor Alfonso Tan, Jr.
8 The docketed petitions were seven; the petitions-in-intervention were ten.
9 A prohibition petition seeks to stop the proceedings of a tribunal, corporation, board, officer or person exercising judicial, quasi-judicial or ministerial functions if any of its act is without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.
10 Separate Opinion, p. 16.
11 The JBC position states:x x x x
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 XXIII 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. [Emphasis supplied.]
12 Mendoza Petition, pp. 5-6.
13 Separate Opinion, pp. 16-17.
14 Supra note 11.
15 Id. at 17.
16 Separate Opinion, pp. 19-22:A first reality is that the JBC cannot, on its own due to lack of the proper authority, determine the appropriate course of action to take under the Constitution. Its principal function is to recommend appointees to the Judiciary and it has no authority to interpret constitutional provisions, even those affecting its principal function; the authority to undertake constitutional interpretation belongs to the courts alone.
A second reality is that the disputed constitutional provisions do not stand alone and cannot be read independently of one another; the Constitution and its various provisions have to be read and interpreted as one seamless whole, giving sufficient emphasis to every aspect in accordance with the hierarchy of our constitutional values. The disputed provisions should be read together and, as reflections of the will of the people, should be given effect to the extent that they should be reconciled.
The third reality, closely related to the second, is that in resolving the coverage of the election ban vis-á -vis the appointment of the Chief Justice and the Members of the Court, provisions of the Constitution other than the disputed provisions must be taken into account. In considering when and how to act, the JBC has to consider that:
1. The President has a term of six years which begins at noon of June 30 following the election, which implies that the outgoing President remains President up to that time. (Section 4, Article VII). The President assumes office at the beginning of his or her term, with provision for the situations where the President fails to qualify or is unavailable at the beginning of his term (Section 7, Article VII).
2. The Senators and the Congressmen begin their respective terms also at midday of June 30 (Sections 4 and 7, Article VI). The Congress convenes on the 4th Monday of July for its regular session, but the President may call a special session at any time. (Section 15, Article VI)
3. The Valenzuela case cited as authority for the position that the election ban provision applies to the whole Judiciary, only decided the issue with respect to lower court judges, specifically, those covered by Section 9, Article VIII of the Constitution. Any reference to the filling up of vacancies in the Supreme Court pursuant to Section 4(1), Article VIII constitutes obiter dictum as this issue was not directly in issue and was not ruled upon.
These provisions and interpretation of the Valenzuela ruling - when read together with disputed provisions, related with one another, and considered with the May 17, 2010 retirement of the current Chief Justice - bring into focus certain unavoidable realities, as follows:
1. If the election ban would apply fully to the Supreme Court, the incumbent President cannot appoint a Member of the Court beginning March 10, 2010, all the way up to June 30, 2010.
2. The retirement of the incumbent Chief Justice - May 17, 2010 - falls within the period of the election ban. (In an extreme example where the retirement of a Member of the Court falls on or very close to the day the election ban starts, the Office of the Solicitor General calculates in its Comment that the whole 90 days given to the President to make appointment would be covered by the election ban.)
3. Beginning May 17, 2010, the Chief Justice position would be vacant, giving rise to the question of whether an Acting Chief Justice can act in his place. While this is essentially a Supreme Court concern, the Chief Justice is the ex officio Chair of the JBC; hence it must be concerned and be properly guided.
4. The appointment of the new Chief Justice has to be made within 90 days from the time the vacancy occurs, which translates to a deadline of August 15, 2010.
5. The deadline for the appointment is fixed (as it is not reckoned from the date of submission of the JBC list, as in the lower courts) which means that the JBC ideally will have to make its list available at the start of the 90-day period so that its process will not eat up the 90-day period granted the President.
6. After noon of June 30, 2010, the JBC representation from Congress would be vacant; the current representatives' mandates to act for their principals extend only to the end of their present terms; thus, the JBC shall be operating at that point at less than its full membership.
7. Congress will not convene until the 4th Monday of July, 2010, but would still need to organize before the two Houses of Congress can send their representatives to the JBC - a process may extend well into August, 2010.
8. By July 5, 2010, one regular member of the JBC would vacate his post. Filling up this vacancy requires a presidential appointment and the concurrence of the Commission on Appointments.
9. Last but not the least, the prohibition in Section 15, Article VII is that "a President or Acting President shall not make appointments." This prohibition is expressly addressed to the President and covers the act of appointment; the prohibition is not against the JBC in the performance of its function of "recommending appointees to the Judiciary" - an act that is one step away from the act of making appointments.
17 The Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel Ancestral Domain, G.R. Nos. 183591, 183791, 183752, 183893, 183951 and 183962, October 14, 2008.
18 By virtue of its power of administrative supervision, the Supreme Court oversees the judges' and court personnel's compliance with the laws, rules and regulations. It may take the proper administrative action against them if they commit any violation. See Ampong v. CSC, G.R. No. 107910, August 26, 2008, 563 SCRA 293. The Constitution separately provides for the Supreme Court's supervision over the JBC. See Article VIII, Section 8 of the CONSTITUTION.
19 Judicial Review is the power of the courts to test the validity of executive and legislative acts for their conformity with the Constitution, Garcia v. Executive Secretary, G.R. No. 157584, April 2, 2009.
20 Control is the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. It is distinguished from supervision in that the latter means overseeing, or the power or authority of an officer to see that subordinate officers perform their duties, and if the latter fail or neglect to fulfill them, then the former may take such action or steps as prescribed by law to make them perform these duties. Nachura, J., Outline Reviewer in Political Law, 2006 ed., p. 276.
21 G.R. No. 156052, February 13, 2008, 545 SCRA 92.
22 Supra notes 11 and 14.
23 Philippine Bar Association (PBA), Women Trial Lawyers Organization of the Philippines (WTLOP), Atty. Amador Z. Tolentino, Atty. Roland B. Inting, Peter Irving Corvera and Alfonso V. Tan, Jr.
24 See PBA's Motion for Reconsideration.
25 See the Motions for Reconsideration for PBA, WTLOP, Atty. Amador Z. Tolentino, Atty. Roland B. Inting, Peter Irving Corvera and Alfonso V. Tan, Jr.
26 CONSTITUTION, Article VII, 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.
27 CONSTITUTION, Article VIII, Section 4(1):
(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 divisions of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.x x x x
28 See Petition on Intervention of WTLOP, as cited in the decision in the above-captioned cases; see also: PBA's motion for reconsideration.
29 Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, citing Civil Liberties Union v. Executive Secretary, 194 SCRA 317 (1994); Peralta v. Commission on Elections, G.R. No. 47771, March 11, 1978, 82 SCRA 30 (1978); Ang-Angco v. Castillo, G.R. No. 17169, November 30, 1963, 9 SCRA 619 (1963).
30 Macalintal v. Commission on Elections, G.R. No. 157013, July 10, 2003, 310 SCRA 614, citing Chiongbian v. De Leon, 82 Phil 771 (1949).
31 Article VI for the Legislature, Article VII for the Executive, and Article VIII for the Judiciary.
32 See Matibag v. Benipayo, G.R. No. 149036, April 2, 2002, 380 SCRA 49; where the court resolved the clash between the power of the President to extend ad interim appointments and the power of the Commission on Appointments to confirm presidential appointments.
33 Ibid.
34 Supra note 13.
35 Separate Opinion, p. 32.
36 Aytona v. Castillo, G.R. No. 19315, January 19, 1962, 4 SCRA 1.