G.R. Nos. 191002, 191032, 191057, 191149, 191342, & 191420, & A.M. No. 10-2-5-SC ARTURO M. DE CASTRO, et al., Petitioners, versus JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL-ARROYO, Respondents.




March 17, 2010












No amount of exigency can make this Court exercise a power where it is not proper.[1]



I am deeply impressed by the very well written ponencia of Justice Lucas P. Bersamin. However, I am unable to concur in all of his conclusions. Instead, I vote to dismiss all the petitions because they have utterly failed to present a justiciable controversy.


The Antecedents


In recent weeks, two potential scenarios have gripped the public mind. The first is the specter of the failure of our first ever automated election which has evoked numerous doomsday predictions. The second is the possibility of the appointment by President Gloria Macapagal Arroyo of the Chief Justice of the Supreme Courtafter the compulsory retirement of incumbent Chief Justice Reynato S. Puno on May 17, 2010. This has generated frenzied debates in media, in various lawyers assemblies, in the academe, and in coffee shops. It has even spawned a number of rallies and demonstrations by civil society groups and by self-styled constitutional experts.


It does not matter that these two situations are merely possibilities, that they are conjectural and speculative at this moment in time. They have, nonetheless, captured the public imagination, and have ushered an open season for unfettered discussion and for dire prognostication.


Not unexpectedly, the controversy posed by the second scenario involving concerns closest to homehas arrived in this Court through various petitions and interventions.


The core issue is whether the sitting President of the Philippines, Gloria Macapagal Arroyo, can validly appoint the Chief Justice of the Supreme Court when the incumbent Chief Justice, Reynato S. Puno, compulsorily retires on May 17, 2010, in light of two apparently conflicting provisions of the Constitution.


Article VII, Section 15, provides a constitutional limitation on the Presidents power of appointment, viz.:


Sec. 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.[2]



On the other hand, Article VIII, Section 4(1) contains an express mandate for the President to appoint the Members of the Supreme Court within ninety days from the occurrence of a vacancy, thus


Sec. 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 divisions of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.[3]



in relation to Article VIII, Section 9, which states that


Sec. 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. Any vacancy shall be filled within ninety days from the occurrence thereof.


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



The perceived conflict was resolved in administrative matter, 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.[4] Therein, the Court was confronted with the question of whether the appointments of the concerned RTC judges, issued within two months before the presidential election in 1998, were valid. The Court answered that, in the given situation, Article VII, Section 15, has primacy over Article VIII, Section 4(1), because the former was couched in stronger negative language. Accordingly, the appointments were nullified. However, Valenzuelas applicability to the present controversy is challenged by most of herein petitioners.


The petitions were filed following certain acts of the Judicial and Bar Council (JBC) related to the constitutional procedure for the appointment of Supreme Court justices, specifically in the matter of the appointment of Chief Justice Punos successor. On January 18, 2010, the JBC passed a Resolution which relevantly 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.[5]



On January 20, 2010, the JBC formally announced the opening, for application or recommendation, of the position of Chief Justice of this Court, thus


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. x x x.[6]



In its February 8, 2010 meeting, the JBC decided to proceed with the process of announcing to the public the names of the candidates for the position. Included in the list of applicants are: (1) Brion, Arturo D.; (2) Carpio, Antonio T.; (3) Corona, Renato C.; (4) Carpio Morales, Conchita; (5) Leonardo-de Castro, Teresita J.; and (6) Sandoval, Edilberto G.[7]


These developments, having already engendered near-hysterical debates, impelled a number of petitioners to file suit. However, obviously hedging against the possibility that the cases would be disallowed on the ground of prematurity, petitioners came to Court using different procedural vehicles.


In G.R. No. 191002, petitioner Arturo de Castro entreats the Court to issue a writ of mandamus to compel the JBC to send the list of nominees for Chief Justice to the incumbent President when the position becomes vacant upon the retirement of Chief Justice Puno on May 17, 2010.


The Philippine Constitution Association (PHILCONSA) and John Peralta, petitioners in G.R. Nos. 191057 and 191149, respectively, plead for the same relief.


In G.R. No. 191032, Jaime Soriano seeks the issuance by the Court of a writ prohibiting the JBC from continuing with its proceedings, particularly the screening of applicants for Chief Justice, based on the hypothesis that the authority to appoint the Chief Justice pertains exclusively to the Supreme Court. He posits that it is the Court that must commence its own internal proceeding to select the successor of Chief Justice Puno.


Amador Tolentino, Jr., in G.R. No. 191342, asks this Court to enjoin and restrain the JBC from submitting the list of nominees for judiciary positions, including that of Chief Justice, to the incumbent President during the period covered in Article VII, Section 15 of the Constitution.


In a cleverly crafted petition which he denominated an administrative matter, former Solicitor General Estelito P. Mendoza filed A.M. No. 10-2-5-SC, imploring this Court to rule, for the guidance of the JBC, whether the constitutional prohibition in Article VII, Section 15, applies to positions in the judiciary and whether the incumbent President may appoint the successor of Chief Justice Puno upon the latters retirement.


Notably, although the petitions sport different appellations (for mandamus, or prohibition, or even as an administrative matter), they (except the Soriano petition) share a common bottom line issue, i.e., a definitive ruling on whether, in light of the perceived conflict between Article VII, Section 15, and Article VIII, Section 4(1), the incumbent President can validly appoint a Chief Justice after Chief Justice Puno retires on May 17, 2010.


Thus, the Court consolidated the petitions and required the JBC and the Office of the Solicitor General (OSG) to file their respective comments.


Significantly, the JBC, in its February 25, 2010 Comment, stated:


11. The next stage of the process which will be the public interview of the candidates, and the preparation of the shortlist of candidates have yet to be undertaken by the JBC as of this date, including the interview of the constitutional experts, as may be needed.

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 VIII 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.[8]



On the other hand, the OSG, in its Comment dated February 26, 2010, took the position that the incumbent President of the Philippines can appoint the successor of Chief Justice Puno when he retires on May 17, 2010, because the prohibition in Article VII, Section 15, of the Constitution does not apply to appointments in the Supreme Court.


Meanwhile, several motions for intervention with oppositions-in-intervention were received by the Court.

Oppositors-Intervenors Antonio Gregorio III, Peter Irving Corvera, Walden Bello, Loretta Ann Rosales, and National Union of Peoples Lawyers uniformly contend in their pleadings that the consolidated petitions should be dismissed outright, because of the absence of an actual case or controversy ripe for judicial adjudication and because of petitioners lack of legal standing to institute the cases.


Oppositor-Intervenor Mitchell John Boiser posits, among others, that the petitions for mandamus are premature because there is yet no final list of nominees and the position of Chief Justice is not yet vacant.


Oppositors-Intervenors Yolanda Quisumbing-Javellana, Belleza Alojado Demaisip, Teresita Gandionco-Oledan, Ma. Verena Kasilag-Villanueva, Marilyn Sta. Romana, Leonila de Jesus, and Guinevere de Leon contend, among others, that the incumbent President is prohibited from making appointments within the period prescribed in Article VII, Section 15; that the next President will still have ample time to appoint a Chief Justice when Chief Justice Puno retires on May 17, 2010 before the 90-day period for appointment mandated in Article VIII, Section 4(1) expires; and that in the interim, the duties of the Chief Justice can be exercised by the most senior of the incumbent Supreme Court justices.


My Position


After careful perusal of the pleadings and painstaking study of the applicable law and jurisprudence, I earnestly believe that the consolidated petitions should be dismissed, because they do not raise an actual case or controversy ripe for judicial determination.


As an essential ingredient for the exercise of the power of judicial review, an actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims susceptible to judicial resolution.[9] The controversy must be justiciabledefinite and concretetouching on the legal relations of parties having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on one hand, and a denial thereof, on the other; that is, the case must concern a real and not a merely theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.[10] The rationale for this requirement is to prevent the courts through avoidance of premature adjudication from entangling themselves in abstract disagreements, and for us to be satisfied that the case does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.[11]


Thus, justiciability requires (1) that there be an actual controversy between or among the parties to the dispute; (2) that the interests of the parties be adverse; (3) that the matter in controversy be capable of being adjudicated by judicial power; and (4) that the determination of the controversy will result in practical relief to the complainant.[12]


By these standards, the consolidated petitions do not present a justiciable controversy because of the absence of clashing legal rights. The JBC has merely started the selection process by accepting applications and nominations for the position of Chief Justice. This is only the initial stage of the procedure for appointment of a Chief Justice. By the JBCs own admission, it has yet to undertake the public interview of the applicants; it has yet to prepare the shortlist and to decide whether it needs to interview constitutional experts.


Arturo de Castro and John Peralta justify the propriety of the filing of their respective petitions for certiorari and mandamus by a common thread: that the JBC has deferred its decision as to whom to submit the list of nominees.[13] They are then asking the Court to compel the JBC to submit the list to the incumbent President.


De Castros and Peraltas submission tends to mislead the Court. It is clear from the narrated facts that there is yet no list to submit. The JBC is still in the process of screening applicants for the position. Since there is no list to be submitted, there can be no deferment of its submission. De Castro and Peralta have not shown or even alleged that the JBC has refused or has been unlawfully neglecting[14] to submit its list, if it is already in existence, to the incumbent President. Mandamus is proper only to compel the performance, when refused, of a ministerial duty.[15] The mandamus petition therefore has no leg to stand on as it presents no actual case ripe for judicial determination.


PHILCONSA, for its part, contends that two applicants for the post, Justices Carpio and Carpio Morales, manifested their interest in their nomination on the condition that the same will be submitted to the next President. According to PHILCONSA, this fact has created a dilemma/quandary to respondent JBC whether to exclude [from] or include [in the list] the names of said two Senior Justices.[16] It then prays for this Court to rule on the issue.


PHILCONSA, like de Castro and Peralta, is not completely truthful. From its comment, it appears that, as early as February 10, 2010, the JBC had already included the two justices, despite their conditional acceptance of their nominations, in the list of applicants for the post. There is no quandary to speak of.


To justify their petitions for prohibition, Jaime Soriano and Amador Tolentino, Jr. allege that the JBC has already started the screening process for Chief Justice.[17] Thus, they claim that the Court can now resolve the constitutional question and issue the writ prohibiting the JBC from submitting the list of nominees to the incumbent President.


As earlier mentioned, absent a shortlist of nominees for Chief Justice prepared by the JBC, there is yet nothing that the Court can prohibit the JBC from submitting to the incumbent President. The JBC has not even intimated concretely that it will perform the act sought to be prohibitedsubmitting a list to the incumbent President. The JBC merely started the screening process. Let it be noted that a writ of prohibition is issued to command a respondent to desist from further proceeding in the action or matter specified.[18] Likewise, without a shortlist, there is nothing that this Court can mandate the JBC to submit to the President.


As to the petition filed by Estelito Mendoza, while it is captioned as an administrative matter, the same is in the nature of a petition for declaratory relief. Mendoza pleads that this Court interpret two apparently conflicting provisions of the ConstitutionArticle VII, Section 15 and Article VIII, Section 4(1). Petitioner Mendoza specifically prays for such a ruling for the guidance of the [JBC], a relief evidently in the nature of a declaratory judgment.


Settled is the rule that petitions for declaratory relief are outside the jurisdiction of this Court.[19] Moreover, the Court does not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging.[20] While Mendoza and the other petitioners espouse worthy causes, they have presented before this Court issues which are still subject to unforeseen possibilities. In other words, the issues they raised are hypothetical and unripe for judicial determination.


At this point, several contingent events are still about to unfold. The JBC, after it has screened the applicants, may decide to submit the shortlist of nominees either before or after the retirement of Chief Justice Puno. If it decides to submit the list after May 17, 2010, it may opt to transmit said list of nominees to President Macapagal-Arroyo or to the next President. If the list is transmitted to her, the incumbent President may either appoint or not appoint the replacement of Chief Justice Puno. We cannot assume that the JBC will do one thing or the other. Neither can we truly predict what the incumbent President will do if such a shortlist is transmitted to her. For us to do so would be to engage in conjecture and to undertake a purely hypothetical exercise.


Thus, the situation calling for the application of either of the conflicting constitutional provisions will arise only when still other contingent events occur. What if the JBC does not finish the screening process during the subject period? What if the President does not make the appointment? Verily, these consolidated petitions involve uncertain contingent future events that may not occur as anticipated, or indeed may not occur at all, similar to the recently decided Lozano v. Nograles,[21] which this Court dismissed through the pen of Chief Justice Puno. As no positive act has yet been committed by respondents, the Court must not intervene. Again, to borrow the words of Chief Justice Puno in Lozano, judicial review is effective largely because it is not available simply at the behest of a partisan faction, but is exercised only to remedy a particular, concrete injury.


Further, the Mendoza petition cannot be likened to the administrative matter in In Re Appointments of Hon. Valenzuela & Hon. Vallarta,[22] over which the Court assumed jurisdiction. In that case, the President appointed judges within the constitutional ban and transmitted the appointments to the Chief Justice. Clearly, an actual controversy ripe for judicial determination existed in that case because a positive act had been performed by the President in violation of the Constitution. Here, as shown above, no positive act has been performed by either the JBC or the President to warrant judicial intervention.


To repeat for emphasis, before this Court steps in to wield its awesome power of deciding cases, there must first be an actual controversy ripe for judicial adjudication. Here, the allegations in all the petitions are conjectural or anticipatory. No actual controversy between real litigants exists.[23] These consolidated petitions, in other words, are a purely academic exercise. Hence, any resolution that this Court might make would constitute an attempt at abstraction that can only lead to barren legal dialectics and sterile conclusions unrelated to actualities.[24]


Moreover, the function of the courts is to determine controversies between litigants and not to give advisory opinions.[25] Here, petitioners are asking this Court to render an advisory opinion on what the JBC and the President should do. To accede to it is tantamount to an incursion into the functions of the executive department.[26] This will further inappropriately make the Court an adviser of the President. Chief Justice Enrique Fernando, in his concurring opinion in Director of Prisons v. Ang Cho Kio,[27] specifically counseled against this undue portrayal by the Court of the alien role of adviser to the President, thus


Moreover, I would assume that those of us entrusted with judicial responsibility could not be unaware that we may be laying ourselves open to the charge of presumptuousness. Considering that the exercise of judicial authority does not embrace the alien role of a presidential adviser, an indictment of officiousness may be hard to repel. It is indefinitely worse if the advice thus gratuitously offered is ignored or disregarded. The loss of judicial prestige may be incalculable. Thereafter, there may be less than full respect for court decisions. It would impair the confidence in its ability to live up to its trust not only on the part of immediate parties to the litigation but of the general public as well. Even if the teaching of decided cases both here and in the Philippines is not as clear therefore, there should be, to say the least, the utmost reluctance on the part of any court to arrogate for itself such a prerogative, the exercise of which is fraught with possibilities of such undesirable character.



The ponencia holds that we need not await the occurrence of the vacancy by May 17, 2010 in order to have the principal issue be ripe for judicial determination. That may very well be desirable. But still, there must be the palpable presence of an actual controversy because, again, as discussed above, this Court does not issue advisory opinions. The Court only adjudicates actual cases that present definite and concrete controversies touching on the legal relations of the parties having adverse legal interests.


The ponencia also sought refuge in the American cases of Buckley v. Valeo[28] and Regional Rail Reorganization Act Cases[29] to support its position that the 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. The cited American cases only considered the issue of ripeness and did not confront the absence of an actual case or controversy. Further, in Buckley, the members of the Commission were already appointed under the statute being challenged as unconstitutional, and they were about to exercise powers under the likewise challenged provisions of the statute. Thus, in those cases, there was the inevitability of the operation of a challenged statute against the appellants. No such situation exists in the cases before us.


Here, the factual and legal setting is entirely different. The JBC only started the screening of the applicants. It has not yet transmitted a list to the President, as, in fact, it still has to make the list. The President has not yet made an appointment for there is yet no vacancy and no shortlist has yet been transmitted to her. The constitutional provisions in question are not yet in operation; they may not even be called into operation. It is not time for the Court to intervene.


A final note. If petitioners only want guidance from this Court, then, let it be stated that enough guidance is already provided by the Constitution, the relevant laws, and the prevailing jurisprudence on the matter. The Court must not be unduly burdened with petitions raising abstract, hypothetical, or contingent questions. As fittingly phrased by Chief Justice Puno in Lozano


Given the sparseness of our resources, the capacity of courts to render efficient judicial service to our people is severely limited. For courts to indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is an evil that clearly confronts our judiciary today.[30]



With the above disquisition, I find no compelling need to discuss the other issues raised in the consolidated petitions.


In light of the foregoing, I vote for the dismissal of the consolidated petitions.




Associate Justice

[1] Chief Justice Reynato S. Puno in Atty. Oliver O. Lozano and Atty. Evangeline J. Lozano-Endriano v. Speaker Prospero C. Nograles, Representative, Majority, House of Representatives; Louis Barok C. Biraogo v. Speaker Prospero C. Nograles, Speaker of the House of Representatives, Congress of the Philippines, G.R. Nos. 187883 & 187910, June 16, 2009.

[2] Emphasis supplied.

[3] Emphasis supplied.

[4] A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.

[5] http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf (visited: March 11, 2010).

[6] http://jbc.judiciary.gov.ph/announcements/jbc_announce_2009/jan.2210.pdf (visited: March 11, 2010).

[7] Comment of the JBC, p. 6.

[8] Italics supplied.

[9] Congressman Enrique T. Garcia of the 2nd District of Bataan v. The Executive Secretary, The Secretary of the Department of Energy, Caltex Philippines, Inc., Petron Corporation, and Pilipinas Shell Corporation, G.R. No. 157584, April 2, 2009.

[10] Information Technology Foundation of the Philippines v. Commission on Elections, G.R. No. 159139, June 15, 2005, 460 SCRA 291, 312-313.

[11] Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 570, 858 A.2d 709 (2004).

[12] Astoria Federal Mortgage Corporation v. Matschke, 111 Conn. App. 462, 959 A.2d 652 (2008).

[13] De Castro petition, p. 5; and Peralta petition, p. 1.

[14] Section 3 of Rule 65 pertinently provides that:

Sec. 3. Petition for mandamus.When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the 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, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.

[15] Pefianco v. Moral, 379 Phil. 468, 479 (2000).

[16] PHILCONSA petition, p. 5.

[17] Soriano petition, p. 4; and Tolentino petition, p. 2.

[18] Section 2 of Rule 65 provides that:

Sec. 2.Petition for prohibition.When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his 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.

[19] Article VIII, Section 5 of the Constitution does not include petitions for declaratory relief among those within the original jurisdiction of the Supreme Court. Section 1 of Rule 63 further provides that:

Sec. 1.Who may file petition.Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder.

[20] Albay Electric Cooperative, Inc., Edgardo A. San Pablo, and Evan Calleja v. Hon. Rafael P. Santelices, in his capacity as the Presiding Judge of the Regional Trial Court of Legazpi City, Branch No. 2, and Mayon International Hotel, Inc., G.R. No. 132540, April 16, 2009.

[21] Supra note 1.

[22] 358 Phil. 896 (1998).

[23] See Confederation of Sugar Producers Association, Inc. v. Department of Agrarian Reform, G.R. No. 169514, March 30, 2007, 519 SCRA 582, 620; Board of Optometry v. Hon. Colet, 328 Phil. 1187, 1206 (1996); and Abbas v. Commission on Elections, G.R. Nos. 89651 & 89965, November 10, 1989, 179 SCRA 287, 300.

[24] Sec. Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 429 (1998); Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).

[25] Automotive Industry Workers Alliance v. Romulo, G.R. No. 157509, January 18, 2005, 449 SCRA 1, 10.

[26] See Sec. Guingona, Jr. v. Court of Appeals, supra note 24.

[27] 33 Phil. 494, 510 (1970).

[28] 424 US 1 (1976).

[29] 419 US 102 (1974).

[30] Supra note 1.