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Ripeness

We hold that the petitions set forth an actual case or controversy that is ripe for judicial

determination. The reality is that the JBC already commenced the proceedings for the selection of

the nominees to be included in a short list to be submitted to the President for consideration of whichof them will succeed Chief Justice Puno as the next Chief Justice. Although the position is not yet

vacant, the fact that the JBC began the process of nomination pursuant to its rules and

practices, although it has yet to decide whether to submit the list of nominees to the

incumbent outgoing President or to the next President, makes the situation ripe for judicial

determination, because the next steps are the public interview of the candidates, the

preparation of the short list of candidates, and the "interview of constitutional experts, as

may be needed."

A part of the question to be reviewed by the Court is whether the JBC properly initiated the

process, there being an insistence from some of the oppositors-intervenors that the JBC could only

do so once the vacancy has occurred (that is, after May 17, 2010). Another part is, of course,whether the JBC may resume its process until the short list is prepared, in view of the provision of

Section 4(1), Article VIII, which unqualifiedly requires the President to appoint one from the short list

to fill the vacancy in the Supreme Court (be it the Chief Justice or an Associate Justice) within 90

days from the occurrence of the vacancy.

The ripeness of the controversy for judicial determination may not be doubted. The challenges to the

authority of the JBC to open the process of nomination and to continue the process until the

submission of the list of nominees; the insistence of some of the petitioners to compel the JBC

through mandamus to submit the short list to the incumbent President; the counter-insistence of the

intervenors to prohibit the JBC from submitting the short list to the incumbent President on the

ground that said list should be submitted instead to the next President; the strong position that the

incumbent President is already prohibited under Section 15, Article VII from making any

appointments, including those to the Judiciary, starting on May 10, 2010 until June 30, 2010; and the

contrary position that the incumbent President is not so prohibited are only some of the real issues

for determination. All such issues establish the ripeness of the controversy, considering that

for some the short list must be submitted before the vacancy actually occurs by May 17,

2010. The outcome will not be an abstraction, or a merely hypothetical exercise. The resolution of

the controversy will surely settle - with finality - the nagging questions that are preventing the JBC

from moving on with the process that it already began, or that are reasons persuading the JBC to

desist from the rest of the process.

We need not await the occurrence of the vacancy by May 17, 2010 in order for the principal

issue to ripe for judicial determination by the Court. It is enough that one alleges conduct

arguably affected with a constitutional interest,but seemingly proscribed by the Constitution.

A 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.65Herein, the facts are not in doubt, for only legal

issues remain.
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Substantive Merits

I

Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy inthe Supreme Court or to other appointments to the Judiciary

Two constitutional provisions are seemingly in conflict.

The first, Section 15, Article VII (Executive Department), provides:

Section 15. Two months immediately before the next presidential elections and up to the endof his term, a President or Acting President shall not make appointments, except temporaryappointments to executive positions when continued vacancies therein will prejudice public service

or endanger public safety.

The other, Section 4 (1), Article VIII (Judicial Department), states:

Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteenAssociate Justices. It may sit en banc or in its discretion, in division of three, five, or sevenMembers. Any vacancy shall be filled within ninety days from the occurrence thereof.

In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino and Inting,submit that the incumbent President can appoint the successor of Chief Justice Puno upon hisretirement on May 17, 2010, on the ground that the prohibition against presidentialappointments under Section 15, Article VII does not extend to appointments in the Judiciary.

The Court agrees with the submission.

First. The records of the deliberations of the Constitutional Commission reveal that the framersdevoted time to meticulously drafting, styling, and arranging the Constitution. Such meticulousnessindicates that the organization and arrangement of the provisions of the Constitution werenot arbitrarily or whimsically done by the framers, but purposely made to reflect theirintention and manifest their vision of what the Constitution should contain.

The Constitution consists of 18 Articles, three of which embody the allocation of the awesomepowers of government among the three great departments, the Legislative (Article VI), the Executive(Article VII), and the Judicial Departments (Article VIII). The arrangement was a true recognition

of the principle of separation of powers that underlies the political structure, as ConstitutionalCommissioner Adolfo S. Azcuna (later a worthy member of the Court) explained in his sponsorshipspeech:

We have in the political part of this Constitution opted for the separation of powers in governmentbecause we believe that the only way to protect freedom and liberty is to separate and dividethe awesome powers of government. Hence, we return to the separation of powers doctrine andthe legislative, executive and judicial departments.66

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As can be seen, Article VII is devoted to the Executive Department, and, among others, it liststhe powers vested by the Constitution in the President . The presidential power of appointment isdealt with in Sections 14, 15 and 16 of the Article.

Article VIII is dedicated to the Judicial Department and defines the duties and qualificationsof Members of the Supreme Court, among others. Section 4(1) and Section 9 of this Article are

the provisions specifically providing for the appointment of Supreme Court Justices. In particular,Section 9 states that the appointment of Supreme Court Justices can only be made by thePresident upon the submission of a list of at least three nominees by the JBC; Section 4(1) ofthe Article mandates the President to fill the vacancy within 90 days from the occurrence ofthe vacancy.

Had the framers intended to extend the prohibition contained in Section 15, Article VII to theappointment of Members of the Supreme Court, they could have explicitly done so . Theycould not have ignored the meticulous ordering of the provisions.They would have easilyand surely written the prohibition made explicit in Section 15, Article VII as being equallyapplicable to the appointment of Members of the Supreme Court in Article VIII itself, mostlikely in Section 4 (1), Article VIII.That such specification was not done only reveals that theprohibition against the President or Acting President making appointments within twomonths before the next presidential elections and up to the end of the President's or ActingPresident's term does not refer to the Members of the Supreme Court.

Although Valenzuela67came to hold that the prohibition covered even judicial appointments,it cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of theConstitutional Commission. Thereby, the confirmation made to the JBC by then Senior AssociateJustice Florenz D. Regalado of this Court, a former member of the Constitutional Commission, aboutthe prohibition not being intended to apply to the appointments to the Judiciary , whichconfirmation Valenzuela even expressly mentioned, should prevail.

Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4 (1), ArticleVIII, viz:

V. Intent of the Constitutional Commission

The journal of the Commission which drew up the present Constitution discloses that the originalproposal was to have an eleven-member Supreme Court. Commissioner Eulogio Lerum wanted toincrease the number of Justices to fifteen. He also wished to ensure that that number would not bereduced for any appreciable length of time (even only temporarily), and to this end proposed thatany vacancy "must be filled within two months from the date that the vacancy occurs." Hisproposal to have a 15-member Court was not initially adopted. Persisting however in his desire tomake certain that the size of the Court would not be decreased for any substantial period as aresult of vacancies, Lerum proposed the insertion in the provision (anent the Court's membership)of the same mandate that "IN CASE OF ANY VACANCY, THE SAME SHALL BE FILLED WITHIN

TWO MONTHS FROM OCCURRENCE THEREOF." He later agreed to suggestions to make theperiod three, instead of two, months. As thus amended, the proposal was approved. As it turned out,however, the Commission ultimately agreed on a fifteen-member Court. Thus it was that thesection fixing the composition of the Supreme Court came to include a command to fill upany vacancy therein within 90 days from its occurrence.

In this connection, it may be pointed out that that instruction that any "vacancy shall be filled withinninety days" (in the last sentence of Section 4 (1) of Article VIII) contrasts with the prohibition in

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Section 15, Article VII, which is couched in stronger negative language - that "a President orActing President shall notmake appointments"

The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a Member ofthis Court) to add to what is now Section 9 of Article VIII, the following paragraph: "WITH RESPECTTO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY

DAYS FROM THE SUBMISSION OF THE LIST" (of nominees by the Judicial and Bar Council tothe President). Davide stated that his purpose was to provide a "uniform rule" for lower courts.

According to him, the 90-day period should be counted from submission of the list of nominees tothe President in view of the possibility that the President might reject the list submitted to him andthe JBC thus need more time to submit a new one.

On the other hand, Section 15, Article VII - which in effect deprives the President of his appointingpower "two months immediately before the next presidential elections up to the end of his term" -was approved without discussion.68

However, the reference to the records of the Constitutional Commission did not advance or supportthe result in Valenzuela. Far to the contrary, the records disclosed the express intent of the framers

to enshrine in the Constitution, upon the initiative of Commissioner Eulogio Lerum, "a command [tothe President] to fill up any vacancy therein within 90 days from its occurrence," which evenValenzuela conceded.69The exchanges during deliberations of the ConstitutionalCommission on October 8, 1986 further show that the filling of a vacancy in the SupremeCourt within the 90-day period was a true mandate for the President , viz:

MR. DE CASTRO. I understand that our justices now in the Supreme Court, together with the ChiefJustice, are only 11.

MR. CONCEPCION. Yes.

MR. DE CASTRO. And the second sentence of this subsection reads: "Any vacancy shall be filledwithin ninety days from the occurrence thereof."

MR. CONCEPCION. That is right.

MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy?

MR. CONCEPCION. That is right. That is borne out of the fact that in the past 30 years, seldom hasthe Court had a complete complement.70

Moreover, the usage in Section 4(1), Article VIII of the word shall - an imperative, operating toimpose a duty that may be enforced71- should not be disregarded. Thereby, Sections 4(1)imposes on the President the imperative duty to make an appointment of a Member of theSupreme Court within 90 days from the occurrence of the vacancy. The failure by thePresident to do so will be a clear disobedience to the Constitution.

The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in theSupreme Court was undoubtedly a special provision to establish a definite mandate for thePresident as the appointing power, and cannot be defeated by mere judicial interpretation inValenzuela to the effect that Section 15, Article VII prevailed because it was "couched instronger negative language." Such interpretation even turned out to be conjectural, in light of therecords of the Constitutional Commission's deliberations on Section 4 (1), Article VIII.
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How Valenzuela justified its pronouncement and result is hardly warranted. According to an authorityon statutory construction:72

xxx the court should seek to avoid any conflict in the provisions of the statute by endeavoringto harmonize and reconcile every part so that each shall be effective. It is not easy to draft astatute, or any other writing for that matter, which may not in some manner contain conflicting

provisions. But what appears to the reader to be a conflict may not have seemed so to thedrafter. Undoubtedly, each provision was inserted for a definite reason. Often by consideringthe enactment in its entirety, what appears to be on its face a conflict may be cleared up andthe provisions reconciled.

Consequently, that construction which will leave every word operative will be favored over one whichleaves some word or provision meaningless because of inconsistency. But a word should not begiven effect, if to do so gives the statute a meaning contrary to the intent of the legislature. On theother hand, if full effect cannot be given to the words of a statute, they must be made effective as faras possible. Nor should the provisions of a statute which are inconsistent be harmonized at asacrifice of the legislative intention. It may be that two provisions are irreconcilable; if so, the onewhich expresses the intent of the law-makers should control. And the arbitrary rule has beenfrequently announced that where there is an irreconcilable conflict between the different provisionsof a statute, the provision last in order of position will prevail, since it is the latest expression of thelegislative will. Obviously, the rule is subject to deserved criticism. It is seldom applied, and probablythen only where an irreconcilable conflict exists between different sections of the same act, and afterall other means of ascertaining the meaning of the legislature have been exhausted. Where theconflict is between two statutes, more may be said in favor of the rule's application, largely becauseof the principle of implied repeal.

In this connection, PHILCONSA's urging of a revisit and a review of Valenzuela is timely andappropriate. Valenzuela arbitrarily ignored the express intent of the ConstitutionalCommission to have Section 4 (1), Article VIII stand independently of any other provision,least of all one found in Article VII. It further ignored that the two provisions had noirreconcilable conflict, regardless of Section 15, Article VII being couched in the negative. As

judges, we are not to unduly interpret, and should not accept an interpretation that defeatsthe intent of the framers.73

Consequently, prohibiting the incumbent President from appointing a Chief Justice on thepremise that Section 15, Article VII extends to appointments in the Judiciary cannot besustained.A misinterpretation like Valenzuela should not be allowed to last after its false premiseshave been exposed.74It will not do to merely distinguish Valenzuela from these cases, for the resultto be reached herein is entirely incompatible with what Valenzuela decreed. Consequently,Valenzuela now deserves to be quickly sent to the dustbin of the unworthy and forgettable.

We reverse Valenzuela.

Second. Section 15, Article VII does not apply as well to all other appointments in the Judiciary.

There is no question that one of the reasons underlying the adoption of Section 15 as part of ArticleVII was to eliminate midnight appointments from being made by an outgoing Chief Executive in the mold of the appointments dealt with in the leading case of Aytona v. Castillo.75In fact, inValenzuela, the Court so observed, stating that:

xxx it appears that Section 15, Article VII is directed against two types of appointments: (1)those made for buying votes and (2) those made for partisan considerations. The first refers
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to those appointments made within the two months preceding a Presidential election and aresimilar to those which are declared election offenses in the Omnibus Election Code, viz.:

xxx

The second type of appointments prohibited by Section 15, Article VII consists of the so-

called "midnight" appointments. InAytona v. Castillo, it was held that after the proclamation ofDiosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in hisbid for reelection, became no more than a "caretaker" administrator whose duty was to "preparefor the orderly transfer of authority to the incoming President." Said the Court:

"The filling up of vacancies in important positions, if few, and so spaced as to afford someassurance of deliberate action and careful consideration of the need for the appointment andappointee's qualifications may undoubtedly be permitted. But the issuance of 350appointments in one night and the planned induction of almost all of them in a few hoursbefore the inauguration of the new President may, with some reason, be regarded by thelatter as an abuse of Presidential prerogatives, the steps taken being apparently a merepartisan effort to fill all vacant positions irrespective of fitness and other conditions, and

thereby to deprive the new administration of an opportunity to make the correspondingappointments."

As indicated, the Court recognized that there may well be appointments to importantpositions which have to be made even after the proclamation of the new President . Suchappointments, so long as they are "few and so spaced as to afford some assurance of deliberateaction and careful consideration of the need for the appointment and the appointee's qualifications,"can be made by the outgoing President. Accordingly, several appointments made by PresidentGarcia, which were shown to have been well considered, were upheld.

Section 15, Article VII has a broader scope than the Aytona ruling . It may not unreasonably bedeemed to contemplate not only "midnight" appointments - those made obviously for partisanreasons as shown by their number and the time of their making - but also appointments presumed

made for the purpose of influencing the outcome of the Presidential election.

On the other hand, the exception in the same Section 15 of Article VII - allowing appointments to bemade during the period of the ban therein provided - is much narrower than that recognizedinAytona. The exception allows only the making oftemporary appointmentsto executive positions when continued vacancies will prejudice public service or endangerpublic safety. Obviously, the article greatly restricts the appointing power of the Presidentduring the period of the ban.

Considering the respective reasons for the time frames for filling vacancies in the courts and therestriction on the President's power of appointment, it is this Court's view that, as a generalproposition, in case of conflict, the former should yield to the latter. Surely, the prevention of vote-

buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or thedisposition of some cases. Temporary vacancies can abide the period of the ban which, incidentallyand as earlier pointed out, comes to exist only once in every six years. Moreover, those occurring inthe lower courts can be filled temporarily by designation. But prohibited appointments are long-lasting and permanent in their effects. They may, as earlier pointed out, in fact influence the resultsof elections and, for that reason, their making is considered an election offense.76

Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubtthat the Constitutional Commission confined the prohibition to appointments made in the Executive

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Department. The framers did not need to extend the prohibition to appointments in theJudiciary, because their establishment of the JBC and their subjecting the nomination andscreening of candidates for judicial positions to the unhurried and deliberate prior process ofthe JBC ensured that there would no longer be midnight appointments to the Judiciary. Ifmidnight appointments in the mold of Aytona were made in haste and with irregularities, or made byan outgoing Chief Executive in the last days of his administration out of a desire to subvert the

policies of the incoming President or for partisanship,77

the appointments to the Judiciary made afterthe establishment of the JBC would not be suffering from such defects because of the JBC's priorprocessing of candidates. Indeed, it is axiomatic in statutory construction that the ascertainment ofthe purpose of the enactment is a step in the process of ascertaining the intent or meaning of theenactment, because the reason for the enactment must necessarily shed considerable light on "thelaw of the statute," i.e., the intent; hence, the enactment should be construed with reference to itsintended scope and purpose, and the court should seek to carry out this purpose rather than todefeat it.78

Also, the intervention of the JBC eliminates the danger that appointments to the Judiciary canbe made for the purpose of buying votes in a coming presidential election, or of satisfyingpartisan considerations. The experience from the time of the establishment of the JBC shows thateven candidates for judicial positions at any level backed by people influential with the Presidentcould not always be assured of being recommended for the consideration of the President, becausethey first had to undergo the vetting of the JBC and pass muster there. Indeed, the creation of theJBC was precisely intended to de-politicize the Judiciary by doing away with the intervention of theCommission on Appointments. This insulating process was absent from the Aytona midnightappointment.

Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in theJudiciary was confirmed by then Senior Associate Justice Regalado to the JBC itself when it met onMarch 9, 1998 to discuss the question raised by some sectors about the "constitutionality of xxxappointments" to the Court of Appeals in light of the forthcoming presidential elections. He assuredthat "on the basis of the (Constitutional) Commission's records, the election ban had no applicationto appointments to the Court of Appeals."79This confirmation was accepted by the JBC, which then

submitted to the President for consideration the nominations for the eight vacancies in the Court ofAppeals.80

The fault of Valenzuela was that it accorded no weight and due consideration to the confirmation ofJustice Regalado. Valenzuela was weak, because it relied on interpretation to determine the intent ofthe framers rather than on the deliberations of the Constitutional Commission. Much of theunfounded doubt about the President's power to appoint during the period of prohibition in Section15, Article VII could have been dispelled since its promulgation on November 9, 1998, hadValenzuela properly acknowledged and relied on the confirmation of a distinguished member of theConstitutional Commission like Justice Regalado.

Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16) concernthe appointing powers of the President.

Section 14 speaks of the power of the succeeding President to revoke appointments made by anActing President,81and evidently refers only to appointments in the Executive Department. It has noapplication to appointments in the Judiciary, because temporary or acting appointments can onlyundermine the independence of the Judiciary due to their being revocable at will.82The letter andspirit of the Constitution safeguard that independence. Also, there is no law in the books thatauthorizes the revocation of appointments in the Judiciary. Prior to their mandatory retirement orresignation, judges of the first and second level courts and the Justices of the third level courts may
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only be removed for cause, but the Members of the Supreme Court may be removed only byimpeachment.

Section 16 covers only the presidential appointments that require confirmation by the Commissionon Appointments. Thereby, the Constitutional Commission restored the requirement of confirmationby the Commission on Appointments after the requirement was removed from the 1973 Constitution.

Yet, because of Section 9 of Article VIII, the restored requirement did not include appointments tothe Judiciary.83

Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect thepower of the President to appoint. The fact that Section 14 and Section 16 refer only toappointments within the Executive Department renders conclusive that Section 15 also applies onlyto the Executive Department. This conclusion is consistent with the rule that every part of the statutemust be interpreted with reference to the context, i.e. that every part must be considered togetherwith the other parts, and kept subservient to the general intent of the whole enactment.84It is absurdto assume that the framers deliberately situated Section 15 between Section 14 and Section 16, ifthey intended Section 15 to cover all kinds of presidential appointments. If that was their intention inrespect of appointments to the Judiciary, the framers, if only to be clear, would have easily andsurely inserted a similar prohibition in Article VIII, most likely within Section 4 (1) thereof.

Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to theJudiciary further undermines the intent of the Constitution of ensuring the independence of theJudicial Department from the Executive and Legislative Departments. Such a holding will tie theJudiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying for thePresidency in a presidential election. Consequently, the wisdom of having the new President,instead of the current incumbent President, appoint the next Chief Justice is itself suspect, andcannot ensure judicial independence, because the appointee can also become beholden to theappointing authority. In contrast, the appointment by the incumbent President does not run the samerisk of compromising judicial independence, precisely because her term will end by June 30, 2010.

Sixth. The argument has been raised to the effect that there will be no need for the incumbent

President to appoint during the prohibition period the successor of Chief Justice Puno within thecontext of Section 4 (1), Article VIII, because anyway there will still be about 45 days of the 90 daysmandated in Section 4(1), Article VIII remaining.

The argument is flawed, because it is focused only on the coming vacancy occurring from ChiefJustice Puno's retirement by May 17, 2010. It ignores the need to apply Section 4(1) to everysituation of a vacancy in the Supreme Court.

The argument also rests on the fallacious assumption that there will still be time remaining in the 90-day period under Section 4(1), Article VIII. The fallacy is easily demonstrable, as the OSG hasshown in its comment.

Section 4 (3), Article VII requires the regular elections to be held on the second Monday of May,letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the regular presidentialelections are held on May 8, the period of the prohibition is 115 days. If such elections are held onMay 14, the period of the prohibition is 109 days. Either period of the prohibition is longer than thefull mandatory 90-day period to fill the vacancy in the Supreme Court. The result is that there are atleast 19 occasions (i.e., the difference between the shortest possible period of the ban of 109 daysand the 90-day mandatory period for appointments) in which the outgoing President would be in noposition to comply with the constitutional duty to fill up a vacancy in the Supreme Court. It is safe toassume that the framers of the Constitution could not have intended such an absurdity. In fact, in
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their deliberations on the mandatory period for the appointment of Supreme Court Justices underSection 4 (1), Article VIII, the framers neither discussed, nor mentioned, nor referred to the banagainst midnight appointments under Section 15, Article VII, or its effects on the 90-day period, orvice versa. They did not need to, because they never intended Section 15, Article VII to apply to avacancy in the Supreme Court, or in any of the lower courts.

Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list isnecessary at all for the President - any President - to appoint a Chief Justice if the appointee is tocome from the ranks of the sitting justices of the Supreme Court.

Sec. 9, Article VIII says:

xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of atleast three nominees prepared by the Judicial and Bar Council for any vacancy. Such appointmentsneed no confirmation.

xxx

The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is,a non-member of the Court aspiring to become one. It speaks of candidates for the Supreme Court,not of those who are already members or sitting justices of the Court, all of whom have previouslybeen vetted by the JBC.

Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief Justice?

The question is not squarely before us at the moment, but it should lend itself to a deeper analysis ifand when circumstances permit. It should be a good issue for the proposed ConstitutionalConvention to consider in the light of Senate President Juan Ponce Enrile's statement that thePresident can appoint the Chief Justice from among the sitting justices of the Court even without aJBC list.

II

The Judiciary Act of 1948

The posture has been taken that no urgency exists for the President to appoint the successor ofChief Justice Puno, considering that the Judiciary Act of 1948 can still address the situation ofhaving the next President appoint the successor.

Section 12 of the Judiciary Act of 1948 states:

Section 12. Vacancy in Office of Chief Justice. - In case of a vacancy in the office of Chief Justice of

the Supreme Court or of his inability to perform the duties and powers of his office, they shalldevolve upon the Associate Justice who is first in precedence, until such disability is removed, oranother Chief Justice is appointed and duly qualified. This provision shall apply to every AssociateJustice who succeeds to the office of Chief Justice.

The provision calls for anActing Chief Justice in the event of a vacancy in the office of the ChiefJustice, or in the event that the Chief Justice is unable to perform his duties and powers. In either ofsuch circumstances, the duties and powers of the office of the Chief Justice shall devolve upon the

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Associate Justice who is first in precedence until a new Chief Justice is appointed or until thedisability is removed.

Notwithstanding that there is no pressing need to dwell on this peripheral matter after the Court hashereby resolved the question of consequence, we do not find it amiss to confront the matter now.

We cannot agree with the posture.

A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is composed of a ChiefJustice and 14 Associate Justices, who all shall be appointed by the President from a list of at leastthree nominees prepared by the JBC for every vacancy, which appointments require no confirmationby the Commission on Appointments. With reference to the Chief Justice, he or she is appointed bythe President as Chief Justice, and the appointment is neverin an acting capacity. The expressreference to a Chief Justice abhors the idea that the framers contemplated an Acting Chief Justice tohead the membership of the Supreme Court. Otherwise, they would have simply written so in theConstitution. Consequently, to rely on Section 12 of the Judiciary Act of 1948 in order to forestall theimperative need to appoint the next Chief Justice soonest is to defy the plain intent of theConstitution.

For sure, the framers intended the position of Chief Justice to be permanent, not one to be occupiedin an acting or temporary capacity. In relation to the scheme of things under the present Constitution,Section 12 of the Judiciary Act of 1948 only responds to a rare situation in which the new ChiefJustice is not yet appointed, or in which the incumbent Chief Justice is unable to perform the dutiesand powers of the office. It ought to be remembered, however, that it was enacted because the ChiefJustice appointed under the 1935 Constitution was subject to the confirmation of the Commission on

Appointments, and the confirmation process might take longer than expected.

The appointment of the next Chief Justice by the incumbent President is preferable to having theAssociate Justice who is first in precedence take over. Under the Constitution, the heads of theLegislative and Executive Departments are popularly elected, and whoever are elected andproclaimed at once become the leaders of their respective Departments. However, the lack of any

appointed occupant of the office of Chief Justice harms the independence of the Judiciary, becausethe Chief Justice is the head of the entire Judiciary. The Chief Justice performs functions absolutelysignificant to the life of the nation. With the entire Supreme Court being the Presidential ElectoralTribunal, the Chief Justice is the Chairman of the Tribunal. There being no obstacle to theappointment of the next Chief Justice, aside from its being mandatory for the incumbent President tomake within the 90-day period from May 17, 2010, there is no justification to insist that the successorof Chief Justice Puno be appointed by the next President.

Historically, under the present Constitution, there has been no wide gap between the retirement andthe resignation of an incumbent Chief Justice, on one hand, and the appointment to and assumptionof office of his successor, on the other hand. As summarized in the comment of the OSG, thechronology of succession is as follows:

1. When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice Pedro Yapwas appointed on the same day;

2. When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan wasappointed on the same day;

3. When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres Narvasawas appointed the following day, December 8, 1991;

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4. When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario Davide,Jr. was sworn into office the following early morning of November 30, 1998;

5. When Chief Justice Davide retired on December 19, 2005, Chief Justice ArtemioPanganiban was appointed the next day, December 20, 2005; and

6. When Chief Justice Panganiban retired on December 6, 2006, Chief Justice Reynato S.Puno took his oath as Chief Justice at midnight of December 6, 2006.85

III

Writ of mandamus does not lie against the JBC

May the JBC be compelled to submit the list of nominees to the President?

Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully neglectsthe performance of an act that the law specifically enjoins as a duty resulting from an office, trust, orstation.86It is proper when the act against which it is directed is one addressed to the discretion of

the tribunal or officer.Mandamus is not available to direct the exercise of a judgment or discretion ina particular way.87

Formandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear legalright to the act demanded; (b) it must be the duty of the defendant to perform the act, because it ismandated by law; (c) the defendant unlawfully neglects the performance of the duty enjoined by law;(d) the act to be performed is ministerial, not discretionary; and (e) there is no appeal or any otherplain, speedy and adequate remedy in the ordinary course of law.

Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least three nomineesto the President for every vacancy in the Judiciary:

Section 8. xxx

(5) The Council shall have the principal function of recommending appointees to the Judiciary.xxx

Section 9. The Members of the Supreme Court and judges of lower courts shall be appointed by thePresident from a list of at least three nominees prepared by the Judicial and Bar Council forevery vacancy. Such appointments need no confirmation.

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

However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in theSupreme Court within 90 days from the occurrence of the vacancy, and within 90 days from thesubmission of the list, in the case of the lower courts. The 90-day period is directed at the President,not at the JBC. Thus, the JBC should start the process of selecting the candidates to fill the vacancyin the Supreme Court before the occurrence of the vacancy.

Under the Constitution, it is mandatory for the JBC to submit to the President the list of nominees tofill a vacancy in the Supreme Court in order to enable the President to appoint one of them within the90-day period from the occurrence of the vacancy. The JBC has no discretion to submit the list to
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the President after the vacancy occurs, because that shortens the 90-day period allowed by theConstitution for the President to make the appointment. For the JBC to do so will be unconscionableon its part, considering that it will thereby effectively and illegally deprive the President of the ampletime granted under the Constitution to reflect on the qualifications of the nominees named in the listof the JBC before making the appointment.

The duty of the JBC to submit a list of nominees before the start of the President's mandatory 90-dayperiod to appoint is ministerial, but its selection of the candidates whose names will be in the list tobe submitted to the President lies within the discretion of the JBC. The object of the petitions formandamus herein should only refer to the duty to submit to the President the list of nominees forevery vacancy in the Judiciary, because in order to constitute unlawful neglect of duty, there must bean unjustified delay in performing that duty.88Formandamus to lie against the JBC, therefore, thereshould be an unexplained delay on its part in recommending nominees to the Judiciary, that is, insubmitting the list to the President.

The distinction between a ministerial act and a discretionary one has been delineated in thefollowing manner:

The distinction between a ministerial and discretionary act is well delineated. A purely ministerialact or duty is one which an officer or tribunal performs in a given state of facts, in aprescribed manner, in obedience to the mandate of a legal authority, without regard to or theexercise of his own judgment upon the propriety or impropriety of the act done. If the lawimposes a duty upon a public officer and gives him the right to decide how or when the dutyshall be performed, such duty is discretionary and not ministerial. The duty is ministerial onlywhen the discharge of the same requires neither the exercise of official discretion or

judgment.89

Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a writ ofmandamus against the JBC. The actions for that purpose are premature, because it is clear that theJBC still has until May 17, 2010, at the latest, within which to submit the list of nominees to thePresident to fill the vacancy created by the compulsory retirement of Chief Justice Puno.

IV

Writ of prohibition does not lie against the JBC

In light of the foregoing disquisitions, the conclusion is ineluctable that only the President canappoint the Chief Justice. Hence, Soriano's petition for prohibition in G.R. No. 191032, whichproposes to prevent the JBC from intervening in the process of nominating the successor of ChiefJustice Puno, lacks merit.

On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of merit. Thechallenge mounted against the composition of the JBC based on the allegedly unconstitutional

allocation of a vote each to the ex officio members from the Senate and the House ofRepresentatives, thereby prejudicing the chances of some candidates for nomination by raising theminimum number of votes required in accordance with the rules of the JBC, is not based on thepetitioners' actual interest, because they have not alleged in their petition that they were nominatedto the JBC to fill some vacancies in the Judiciary. Thus, the petitioners lack locus standi on thatissue.

WHEREFORE, the Court:
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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 ofmerit; and

3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and BarCouncil:

(a) To resume its proceedings for the nomination of candidates to fill the vacancy tobe created by the compulsory retirement of Chief Justice Reynato S. Puno by May17, 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 ofChief Justice on or before May 17, 2010; and

(d) To continue its proceedings for the nomination of candidates to fill othervacancies in the Judiciary and submit to the President the short list of nomineescorresponding thereto in accordance with this decision.

SO ORDERED.

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