The Soriano Petition (GR 191032): De Castro vs. JBC, GR 191002, 17 March 2010
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Transcript of The Soriano Petition (GR 191032): De Castro vs. JBC, GR 191002, 17 March 2010
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The Legal Standing of the Petitioner& The Legal Propriety of this Petition
1. Petitioner is filing this suit as a citizen of the Republic of the Philippines
who believes that there is a compelling interest to intervene, on the basis
of the Constitution, in the current controversy arising from the designation
of the next Chief Justice because this issue has far-reaching implication in
the pursuit of judicial independence, in particular, and carries
transcendental significance in the life of this nation, in general.
2. Petitioner is also suing as a taxpayer inasmuch as the continuing
proceedings of the respondent Judicial and Bar Council would involve
the unnecessary, if not illegal, disbursement (i. e. for publication and
meetings and the like) of public funds and/or taxpayers' money, because
as will be explained and argued hereunder the process is not in
accordance with the Constitution,
3. Petitioner is also suing as a member of the Philippine Bar and as an
officer of the court with a solemn duty to participate in the development
of the legal system by initiating or supporting efforts in law reform and in
the improvement of the administration of justice1
4. Respondent Judicial and Bar Council is being impleaded in its official
capacity being the constitutional body created by the Constitution to
prepare the list of at least three nominees, from which the President of the
Philippines shall appoint the Members of the Supreme Court in case of
1Canon 4, Code of Professional Responsibility
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vacancy2. For the service of legal processes and notices, respondent's
office is at 2nd Floor, Centennial Bldg., Supreme Court, Padre Faura,
Manila, Philippines 1000
5. Petitioner is compelled to initiate this petition against this respondent
before this Honorable Court by invoking its concurrent and original
jurisdiction over petitions for prohibition under the Constitution3 because
the Judicial and Bar Council is a constitutional body under it4.
Brief Statement of Facts
1. The facts of this case is matter that this Honorable Court has judicial
notice and full knowledge of.
2. But essentially for purposes of this petition, the incumbent Chief Justice is
set to retire on 17 May 2010 and consequently respondent, in its en banc
meeting of 18 January 2010, unanimously agreed to start the process of
filling up the position of Chief Justice x x x5
3. Some individuals and Members of this Honorable Court actually
manifested and expressed interest to the respondent to be included in the
list of nominees to be submitted to the respondent.
2Sec. 8 and 9, Art. VIII, Constitution
3Sec. 5 (1), Art. VIII, Constitution
4Sec. 8 (4) and (5), Art. VIII, ibid.
5http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf [accessed: 8 February 2010]
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4. On 11 January 2010, petitioner official wrote the Honorable Chief
Justice, copy furnished the Members of this Honorable Court expressing his
modest legal opinion that the Chief Justice should be chosen by the
Supreme Court en banc in accordance with the Constitution and not by
appointment of the President (present or future) from a list to be submitted
by the respondent. In reply, petitioner received a letter dated 19 January
2010 stating that petitioner's suggestion was referred-endorsed to the
respondent and the letter was duly NOTED by the JBC during its en banc
meeting on 18 January 2010. Original copies of these letters are hereto
attached in the original copy of this petition as Annexes A and B .
5. With the official announcement of the respondent that it has
unanimously agreed in an en banc meeting held on 18 January 2010 to
start the search, nomination and selection process to fill up the post to be
vacated by the current Chief Justice on 17 May 2010, it necessarily follows
that respondent has already set aside petitioner's submission. Hence,
petitioner is constrained to file this action invoking this Honorable Court's
power of judicial review.
Constitutional Ground and Argumentsin Support of this Petition
1. The power to appoint the Chief Justice is not vested with the President
of the Philippines but with the Supreme Count en banc under the
Constitution.
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a) The power of appointment of the President under the Constitution is
expressed in this wise:
The President shall nominate and, with the consent of theCommission on Appointments, appoint the heads of the
executive department, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are
vested in him in this Constitution. He shall also appoint all other
officers of the Government whose appointment are not
otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest
the appointment of other officers lower in rank in the President
alone, in the courts, or in the heads of departments, agencies,commissions, or boards.
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
involuntary, but such appointments shall be effective only until
after disapproval by the Commission on appointments or until
the next adjournment of the Congress.6 (underscoring and
emphasis supplied)
b) The Constitution also provides:
Sec. 5. The Supreme Court shall have the following powers:
x x x x x x
(6) Appoint all officials and employees of the judiciary in
accordance with the Civil Service Law.7 (underscoring and
emphasis supplied)
And compared to the Constitution of the United States where judicial
practices in this jurisdiction are patterned, such provision does not exist in
the American fundamental law, and is therefore unique in ours.
6Sec. 16, Art. VII, Constitution
7Art. VIII, ibid
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c) An official is someone who holds or invested with an authority or
office and there appears to be no doubt that the position of Chief Justice
is considered or deemed as an official of the judiciary, its highest official in
fact. The Chief Justice is not the Supreme Court, and so are the individual
members of the High Court. The Chief Justice is plainly an official of the
judiciary in charge of its day-to-day functions being the head of the third
branch of government. The Chief Justice alone does not exercise judicial
power.
d) Under the above-quoted constitutional provision, the President may
exercise the appointing power only to offices (1) whose appointment is
vested to him by law or the Constitution, and (2) whose appointment is
not otherwise provided for by law. But curiously in the case of officers or
'officials' of the judiciary, which includes the post of Chief Justice, the
power to appoint is expressly vested by the Constitution as above-quoted
to the Supreme Court, thereby removing that power from the ambit of
presidential authority.
e) In fact, this interpretation is consistent and in accord with the
constitutional mandate of the respondent Judicial and Bar Council which
says:
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.
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For the lower courts, the President shall issue the appointments
within ninety days from the submission of the list.8
Clearly, the appointing authority of the President is limited to the Members
or the Associate Justices of this Honorable Supreme Court, and not to the
position of Chief Justice. Consequently, the only time respondent may
intervene in the search, selection and nomination process of the Chief
Justice is when the individual or person being sought for the position by
the Supreme Court is not yet a member or associate justice of the High
Court. But respondent's proceedings consistent with the afore-quoted
constitutional provision is only for the purpose of making such person or
individual a member of this Honorable Court, in order to qualify him or her
to be appointed as a Chief Justice by this Honorable Court.
f) Thus, the respondent Judicial and Bar Council committed grave abuse
of discretion amounting to lack of or in excess of its jurisdiction when it
resolved unanimously on 18 January 2010 to open the search, nomination,
and selection process for the position of Chief Justice upon the retirement
of the Honorable Reynato S. Puno on 17 May 2010 for the purpose of
submitting a list of nominees for appointment by the President.
Respondent is bereft of such authority under the Constitution.
g) Under the Rules of Court, (W)hen 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
8Sec. 9, Art. VIII, Constitution
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Honorable Court is able to preserve the integrity and independence of
the judiciary, and more importantly would free or perhaps insulate itself
from the disceptation of politics.
c) In favorably resolving this petition in accordance with the Constitution,
the Honorable Court would also spare itself from any or all legal,
constitutional and political controversies, that is whether or not the
appointment should be done by the incumbent President or the President
-Elect after the May 2010 elections - which only serve to undermine
judicial independence and integrity.
Arguments in Support of Prayer for Injunctive Relief
1. Petitioner re-pleads by reference the foregoing allegations as integral
part of this arguments.
2. Pending determination of this petition by this Honorable Court, it is
imperative that a temporary restraining order, a writ of preliminary
injunction and/or a stay order be issued against respondent Judicial and
Bar Council enjoining it from further proceedings with the search, selection
and nomination process for the position of Chief Justice upon the
retirement of the Honorable Reynato S. Puno on 17 May 2010.
3. Petitioner is entitled to the relief demanded, and the whole or part of
such relief consists in restraining and prohibiting public respondent from
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proceeding with the search, selection and nomination process for the
position of Chief Justice because its official action contravenes the
Constitution as earlier explained.
4. The fact that respondent unanimously approved on 18 January 2010 to
commence deliberation or proceedings on the nomination process might
render this petition moot and academic especially if a list of nominees is
submitted in due course to the incumbent President.
5. Verily, respondent's proceeding is a violation of the Constitution
because it arrogated upon itself a power exclusively vested to this
Honorable Court, and therefore should be enjoined immediately.
Closing Statement
In filing this petition, petitioner is reminded of the thoughts of Thomas
Jefferson when he said centuries ago that:
"The judiciary... is a body which, if rendered independent and kept
strictly to their own department, merits great confidence for their
learning and integrity."10
"The dignity and stability of government in all its branches, the moralsof the people and every blessing of society depend so much upon
an upright and skillful administration of justice, that the judicial power
ought to be distinct from both the legislative and executive and
independent upon both, that so it may be a check upon both, as
both should be checks upon that."11
I beg this Honorable Court to assert its judicial supremacy and re-define
our constitutional history in the appointment of its Chief Justice.
10Addressed to James Madison, 1789. ME 7:309
11Addressed to George Wythe, 1776. Papers 1:410
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PRAYER
ACCORDINGLY, it is most respectfully prayed of this Honorable Court, that