EN BANC

Agenda for April 20, 2010

Item No. 43

 

 

G.R. No. 191002 Arturo M. De Castro v. Judicial and Bar Council, and President Gloria Macapagal Arroyo

 

G.R. No. 191032 Jaime N. Soriano v. Judicial and Bar Council

 

G.R. No. 191057 Philippine Constitution Association v. Judicial and Bar Council

 

A.M. No. 10-2-5-SC In Re: Applicability of Section 15, Article VII of the Constitution to Appointments to the Judiciary

 

G.R. No. 191149 John G. Peralta v. Judicial and Bar Council

 

G.R. No. 191342 Atty. Amador Z. Tolentino, Jr. (IBP Governor-Southern Luzon), and Atty. Roland B. Inting (IBP Governor- Eastern Visayas) v. Judicial and Bar Council

 

G.R. No. 191420 Philippine Bar Association, Inc. v. Judicial and Bar Council and Her Excellency Gloria Macapagal-Arroyo

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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 Decisions 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.

 

 

 

 

CONCHITA CARPIO MORALES

Associate Justice