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.
Promulgated:
March
17, 2010
x-----------------------------------------------------------------------------------------x
SEPARATE OPINION
NACHURA, J.:
“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 Court—after 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 home—has 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 President’s 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, Valenzuela’s 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
Puno’s 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)
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 latter’s 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 justiciable—definite
and concrete—touching 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 JBC’s 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 Castro’s and Peralta’s 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
prohibited—submitting 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 Constitution—Article VII, Section 15
and Article VIII, Section 4(1). Petitioner
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
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.
ANTONIO
EDUARDO B. NACHURA
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.22’10.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
[12] Astoria Federal Mortgage Corporation v.
Matschke, 111
[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);
[25] Automotive Industry Workers
[26] See
Sec. Guingona, Jr. v. Court of Appeals,
supra note 24.
[27] 33 Phil. 494, 510 (1970).
[28] 424
[29] 419
[30] Supra
note 1.