the prime minister in most parliamentary nations, the high-ranking prelate in
G.R. No. 191002 Arturo M. De Castro v. Judicial and Bar Council, and
President Gloria Macapagal Arroyo
G.R. No. 191032 Jaime N. Soriano v. Judicial and Bar Council
G.R. No. 191057 Philippine Constitution Association v. Judicial
and Bar Council
A.M. No. 10-2-5-SC In Re: Applicability of Section 15, Article VII of
the Constitution to Appointments to the Judiciary
G.R. No. 191149 John G. Peralta v. Judicial and Bar Council
G.R. No. 191342 Atty. Amador Z. Tolentino, Jr. (IBP Governor-
Southern Luzon), and Atty. Roland B. Inting
(IBP Governor- Eastern Visayas) v. Judicial and Bar Council
G.R. No. 191420 Philippine Bar Association, Inc. v. Judicial and
Bar Council and Her Excellency Gloria Macapagal-Arroyo
Promulgated:
March 17, 2010
x-----------------------------------------------------------------------------------------x
DISSENTINGOPINION
CARPIO MORALES, J.:
"Although the Chief Justice is primus inter pares, he cannot legally decide a
case on his own because of the Courts nature as a collegial body. Neither
can the Chief Justice, by himself, overturn the decision of the Court, whether
of a division or the en banc."
Associate Justice Renato C. Corona in
Complaint of Mr. Aurelio Indencia Arrienda
against Justice Puno, 499 Phil. 1, 14 (2005)
Primus Inter pares. First among equals. The Latin maxim indicates that a
person is the most senior of a group of people sharing the same rank or
office. The phrase has been used to describe the status, condition or role of
several religious orders, and the chief justice in many supreme courts
around the world.[1]
The inclination to focus on the inter pares without due emphasis on
the primus/prima[2] has spawned contemporary discourse that revives the
original tug-of-war between domination and parity, which impasse the
conceived maxim precisely intended to resolve.
In the present case, several arguments attempt to depict a mirage of
doomsday scenarios arising from the impending vacancy of the primus in the
Court as a springboard for their plea to avert a supposed undermining of the
independence of the judiciary. In reality, the essential question boils down
to the limitation on the appointing power of the President.
The ponencia of Justice Bersamin holds that the incumbent President can
appoint the next Chief Justice upon the retirement of Chief Justice Reynato
S. Puno on May 17, 2010 since the prohibition during election period[3] does
not extend to appointments in the judiciary, thereby reversing In re
appointments of Hon. Valenzuela & Hon. Vallarta.[4]
The ponencia additionally holds that the Judicial and Bar Council (JBC) has
until May 17, 2010, at the latest, within which to submit to the President the
list of nominees for the position of Chief Justice.
I DISSENT.
Constitutional draftsmanship style is the weakest aid in arriving at a
constitutional construction
The first ratiocination adverts to the organization and arrangement of the
provisions of the Constitution that was, as the ponencia declares, purposely
made by the framers of the Constitution to reflect their intention and manifest
their vision of the charters contents.
It is unfortunate that the ponencia chiefly relies on the trivialities of
draftsmanship style in arriving at a constitutional construction. The petitioner
in Anak Mindanao Party-List Group v. The Executive Secretary[5] raised a
similar argument, but the Court held:
AMIN goes on to proffer the concept of ordering the law which, so it alleges,
can be said of the Constitutions distinct treatment of these three areas, as
reflected in separate provisions in different parts of the Constitution. It
argues that the Constitution did not intend an over-arching concept of
1
agrarian reform to encompass the two other areas, and that how the law is
ordered in a certain way should not be undermined by mere executive
orders in the guise of administrative efficiency.
The Court is not persuaded.
The interplay of various areas of reform in the promotion of social justice is
not something implausible or unlikely. Their interlocking nature cuts across
labels and works against a rigid pigeonholing of executive tasks among the
members of the Presidents official family. Notably, the Constitution inhibited
from identifying and compartmentalizing the composition of the Cabinet. In
vesting executive power in one person rather than in a plural executive, the
evident intention was to invest the power holder with energy.
AMIN takes premium on the severed treatment of these reform areas in
marked provisions of the Constitution. It is a precept, however, that
inferences drawn from title, chapter or section headings are entitled to
very little weight. And so must reliance on sub-headings, or the lack
thereof, to support a strained deduction be given the weight of helium.
Secondary aids may be consulted to remove, not to create doubt. AMINs
thesis unsettles, more than settles the order of things in construing the
Constitution. Its interpretation fails to clearly establish that the so-called
ordering or arrangement of provisions in the Constitution was
consciously adopted to imply a signification in terms of government
hierarchy from where a constitutional mandate can per se be derived
or asserted. It fails to demonstrate that the ordering or layout was not
simply a matter of style in constitutional drafting but one of intention in
government structuring. With its inherent ambiguity, the proposed
interpretation cannot be made a basis for declaring a law or governmental
act unconstitutional.[6] (emphasis and underscoring supplied)
Concededly, the allocation of three Articles in the Constitution devoted to the
respective dynamics of the three Departments was deliberately adopted by
the framers to allocate the vast powers of government among the three
Departments in recognition of the principle of separation of powers.
The equation, however, does not end there. Such kind of formulation
detaches itself from the concomitant system of checks and balances.Section
sequencing alone of Sections 14, 15 and 16 of Article VII, as explained in
the fourth ratiocination, does not suffice to signify functional structuring.
That the power of judicial appointment was lodged in the President is a
recognized measure of limitation on the power of the judiciary, which
measure, however, is counterbalanced by the election ban due to the need
to insulate the judiciary from the political climate of presidential elections. To
abandon this interplay of checks and balances on the mere inference that
the establishment of the JBC could de-politicize the process of judicial
appointments lacks constitutional mooring.
The establishment of the JBC is not sufficient to curtail the evils
of midnight appointments in the judiciary
The constitutional prohibition in Section 15 found its roots in the case
of Aytona v. Castillo,[7] where among the midnight or last minute
appointments voided to abort the abuse of presidential prerogatives or
partisan efforts to fill vacant positions were one in the Supreme Court and
two in the Court of Appeals.
Heeding Aytonas admonition, the Constitutional Commission (ConCom) saw
it fit to provide for a comprehensive ban on midnightappointments, finding
that the establishment of the JBC is not enough to safeguard or insulate
judicial appointments from politicization. The ConCom deliberations reveal:
MR. GUINGONA: Madam President.
THE PRESIDENT: Commissioner Guingona is recognized.
MR. GUINGONA: Would the distinguished proponent accept an amendment
to his amendment to limit this prohibition to members of collegiate courts?
The judges of the lower courts perhaps would not have the same category or
the same standing as the others mentioned here.
MR. DAVIDE: Pursuant to the post amendment, we already included here
government-owned or controlled corporations or their subsidiaries which are
not even very sensitive positions. So with more reason that the prohibition
should apply to appointments in these bodies.
THE PRESIDENT: Does the Committee accept?
FR. BERNAS: What is common among these people Ministers, Deputy
Ministers, heads of bureaus or offices is that they are under the control of
the President.
MR. GUINGONA: That is correct.
2

FR. BERNAS: Whereas, the other offices the Commissioner mentioned are
independent offices.
MR. DAVIDE: The idea of the proposal is that about the end of the term of
the President, he may prolong his rule indirectly by appointing people to
these sensitive positions, like the commissions, the Ombudsman,
the JUDICIARY, so he could perpetuate himself in power even beyond his
term of office; therefore foreclosing the right of his successor to make
appointments to these positions. We should realize that the term of the
President is six years and under what we had voted on, there is no
reelection for him. Yet he can continue to rule the country through
appointments made about the end of his term to these sensitive positions.
FR. BERNAS: At any rate, there are other checks as far as the appointment
of those officers is concerned.
MR. DAVIDE: Only insofar as the Commission on Appointments is
concerned for offices which would require consent, and the Judicial Bar
Council insofar as the judiciary is concerned.
FR. BERNAS: We leave the matter to the body for a vote.[8] (capitalization
and emphasis supplied)
The clear intent of the framers is thus for the ban on midnight appointments
to apply to the judiciary. The succeeding interpellations[9]suggest no
departure from this intent.
For almost half a century, the seeds of Aytona, as nurtured and broadened
by the Constitution, have grown into an established doctrine that has
weathered legal storms like Valenzuela.
The second ratiocination in the ponencia could thus not remove an added
constitutional safeguard by pretending to have examined and concluded that
the establishment of the JBC had eliminated all encompassing forms of
political maneuverings during elections. Otherwise, reading into the
Constitution such conclusion so crucial to the scheme of checks and
balances, which is neither written nor tackled, undermines the noticeable
silence or restraint exercised by the framers themselves from making a
definitive analysis.
To illustrate, the instance given in the fifth ratiocination that having the new
President appoint the next Chief Justice cannot ensure judicial
independence because the appointee can also become beholden to the
appointing authority bears an inconsistent stance. It does not admit or
recognize that the mechanism of removal by impeachment eliminates the
evils of political indebtedness. In any event, that level of reasoning overlooks
the risk of compromising judicial independence when the outgoing President
faces the Court in the charges that may be subsequently filed against
her/him, and when the appointing President is up for re-election in the
peculiar situation contemplated by Section 4, Article VII of the Constitution.
All rules of statutory construction revolt against the interpretation
arrived at by the ponencia
It is simplistic and unreliable for the ponencia to contend that had the
framers intended to extend the ban in Article VII to appointments in the
judiciary, they would have easily and surely written so in Article VIII, for it
backlashes the question that had the framers intended to exclude judicial
appointments in Article VIII from the prohibition in Article VII, they would
have easily and surely written so in the excepting proviso in Article VII.
Taking into account how the framers painstakingly rummaged through
various sections of the Constitution and came up with only one exception
with the need to specify the executive department, it insults the collective
intelligence and diligence of the ConCom to postulate that it intended to
exclude the judiciary but missed out on that one.
To hold that the ban on midnight appointments applies only to executive
positions, and not to vacancies in the judiciary and independent
constitutional bodies, is to make the prohibition practically useless. It bears
noting that Section 15, Article VII of the Constitution already allows the
President, by way of exception, to make temporary appointments in the
Executive Department during the prohibited period. Under this view, there is
virtually no restriction on the Presidents power of appointment during the
prohibited period.
The general rule is clear since the prohibition applies to ALL kinds
of midnight appointments. The Constitution made no distinction. Ubi lex non
distinguit nec nos distinguere debemos.
The exception is likewise clear. Expressio unius et exclusio alterius. The
express mention of one person, thing or consequence implies the exclusion
of all others.[10] There is no clear circumstance that would indicate that the
enumeration in the exception was not intended to be exclusive. Moreover,
the fact that Section 15 was couched in negative language reinforces the
exclusivity of the exception.
3

Under the rules of statutory construction, exceptions, as a general rule,
should be strictly but reasonably construed; they extend only so far as their
language fairly warrants, and all doubts should be resolved in favor of the
general provisions rather than the exception. Where a general rule is
established by statute with exceptions, the court will not curtail the former
nor add to the latter by implication.[11] (italics in the original; underscoring
supplied)
The proclivity to innovate legal concepts is enticing. Lest the basic rule be
forgotten, it helps to once more recite that when the law is clear, it is not
susceptible to interpretation and must be applied regardless of who may be
affected, even if the law may be harsh or onerous. [12]
In its third ratiocination, the ponencia faults Valenzuela for not according
weight and due consideration to the opinion of Justice Florenz Regalado. It
accords high regard to the opinion expressed by Justice Regalado as a
former ConCom Member, to the exception of the opinion of all others
similarly situated.
It bears noting that the Court had spoken in one voice
in Valenzuela. The ponencia should not hastily reverse, on the sole basis of
Justice Regalados opinion, the Courts unanimous en banc decision penned
by Chief Justice Andres Narvasa, and concurred in by, inter alia, Associate
Justices who later became Chief Justices Hilario Davide, Jr., Artemio
Panganiban and Reynato Puno.
The line of reasoning is specious. If that is the case and for accuracys sake,
we might as well reconvene all ConCom members and put the matter to a
vote among them.
Providentially, jurisprudence is replete with guiding principles to
ascertain the true meaning of the Constitution when the provisions as
written appear unclear and the proceedings as recorded provide little
help:
While it is permissible in this jurisdiction to consult the debates and
proceedings of the constitutional convention in order to arrive at the reason
and purpose of the resulting Constitution, resort thereto may be had only
when other guides fail as said proceedings are powerless to vary the terms
of the Constitution when the meaning is clear. Debates in the constitutional
convention "are of value as showing the views of the individual members,
and as indicating the reasons for their votes, but they give us no light as to
the views of the large majority who did not talk, much less of the mass of our
fellow citizens whose votes at the polls gave that instrument the force of
fundamental law. We think it safer to construe the constitution from what
appears upon its face." The proper interpretation therefore depends more on
how it was understood by the people adopting it than in the framers'
understanding thereof.[13] (underscoring supplied)
The clear import of Section 15 of Article VII is readily apparent. The people
may not be of the same caliber as Justice Regalado, but they simply could
not read into Section 15 something that is not there. Casus omissus pro
omisso habendus est.
What complicates the ponencia is its great preoccupation with Section 15 of
Article VII, particularly its fixation with sentences or phrases that are neither
written nor referred to therein. Verba legis non est recedendum, index animi
sermo est. There should be no departure from the words of the statute, for
speech is the index of intention.
IN FINE, all rules of statutory construction virtually revolt against the
interpretation arrived at by the ponencia.
The 90-day period to fill a vacancy in the Supreme Court is suspended
during the ban on midnight appointments
Although practically there is no constitutional crisis or conflict involved upon
the retirement of the incumbent Chief Justice, the ponenciaillustrates the
inapplicability of the 90-day mandate to every situation of vacancy in the
Supreme Court (i.e., the 19-day vacuum articulated in the sixth
ratiocination) if only to buttress its thesis that judicial appointment is an
exception to the midnight appointments ban. The contemplated situation,
however, supports the idea that the 90-day period is suspended during the
effectivity of the ban.
I submit that the more important and less complicated question is whether
the 90-day period in Section 4(1) of Article VIII[14] runs during the period of
prohibition in Section 15 of Article VII.
In response to that question, the ponencia declares that it is the Presidents
imperative duty to make an appointment of a Member of the Supreme Court
within 90 days from the occurrence of the vacancy [and that t]he failure by
the President to do so will be a clear disobedience to the Constitution.[15]
The ponencia quotes certain records of the ConCom deliberations which,
however, only support the view that the number of Justices should not be
reduced for any appreciable length of time and it is a mandate to the
executive to fill the vacancy. Notably, there is no citation of any debate on
how the framers reckoned or determined an appreciable length of time of 90
4
days, in which case a delay of one day could already bring about the evils it
purports to avoid and spell a culpable violation of the Constitution. On the
contrary, that the addition of one month to the original proposal of 60 days
was approved without controversy[16] ineluctably shows that the intent
was not to strictly impose an inflexible timeframe.
Respecting the rationale for suspending the 90-day period, in cases where
there is physical or legal impossibility of compliance with the duty to fill the
vacancy within the said period, the fulfillment of the obligation is released
because the law cannot exact compliance with what is impossible.
In the present case, there can only arise a legal impossibility when the
JBC list is submitted or the vacancy occurred during the appointments ban
and the 90-day period would expire before the end of the appointments ban,
in which case the fresh 90-day period should start to run at noon of June
30. This was the factual antecedent respecting the trial court judges involved
in Valenzuela. There also arises a legal impossibility when the list is
submitted or the vacancy occurred prior to the ban and no appointment was
made before the ban starts, rendering the lapse of the 90-day period within
the period of the ban, in which case the remaining period should resume to
run at noon of June 30. The outgoing President would be released from non-
fulfillment of the constitutional obligation, and the duty devolves upon the
new President.
Considering also that Section 15 of Article VII is an express limitation on the
Presidents power of appointment, the running of the 90-day period is
deemed suspended during the period of the ban which takes effect only
once every six years.
This view differs from Valenzuela in that it does not implement Section 15 of
Article VII so as to breach Section 4(1) of Article VIII. Instead of disregarding
the 90-day period in the observance of the ban on midnight appointments,
the more logical reconciliation of the two subject provisions is to consider the
ban as having the effect of suspending the duty to make the appointment
within 90 days from the occurrence of the vacancy. Otherwise stated, since
there is a ban, then there is no duty to appoint as the power to appoint does
not even exist. Accordingly, the 90-day period is suspended once the ban
sets in and begins or continues to run only upon the expiration of the ban.
One situation which could result in physical impossibility is the inability of
the JBC to constitute a quorum for some reasons beyond their control, as
that depicted by Justice Arturo Brion in his Separate Opinion, in which case
the 90-day period could lapse without fulfilling the constitutional obligation.
Another such circumstance which could frustrate the ponencias depiction of
the inflexibility of the period is a no-takers situation where, for some reason,
there are no willing qualified nominees to become a Member of the
Court.[17] Some might find this possibility remote, but then again, the
situation at hand or the absurdity[18] of a 19-day overlapping vacuum may
have also been perceived to be rare.
The seventh ratiocination is admittedly a non-issue. Suffice it to state that
the Constitution is clear that the appointment must come from a list x x x
prepared by the Judicial and Bar Council.
The Supreme Court can function effectively during
the midnight appointments ban without an appointed Chief Justice
The ponencia also holds that the JBC has until May 17, 2010, at the latest,
within which to submit to the President the list of nominees for the position of
Chief Justice. It declares that the JBC should start the process of selecting
the candidates to fill the vacancy in the Supreme Court before the
occurrence of the vacancy, explaining that the 90-day period in the proviso,
Any vacancy shall be filled within ninety days from the occurrence thereof, is
addressed to the President, not to the JBC.
Such interpretation is absurd as it takes the application and nomination
stages in isolation from the whole appointment process. For the ponencia,
the filling of the vacancy only involves the President, and the JBC was not
considered when the period was increased from 60 days to 90 days. The
sense of the Concom is the exact opposite.[19]
The flaw in the reasoning is made more evident when the vacancy occurs by
virtue of death of a member of the Court. In that instance, the JBC could
never anticipate the vacancy, and could never submit a list to the President
before the 90-day period.
Sustaining the view means[20] that in case the President appoints as Chief
Justice a sitting member of the Court, from a JBC list which includes, for
instance, incumbent justices and outsiders, the JBC must forthwith submit a
list of nominees for the post left vacant by the sitting member-now new Chief
Justice. This thus calls for the JBC, in anticipation, to also commence and
conclude another nomination process to fill the vacancy,
and simultaneously submit a list of nominees for such vacancy, together with
the list of nominees for the position of Chief Justice. If the President appoints
an outsider like Sandiganbayan Justice Edilberto Sandoval as Chief Justice,
5
however, the JBCs toil and time in the second nomination process are put to upon his retirement on May 17, 2010 until the ban ends
waste. at 12:00 noon of June 30, 2010.

It is ironic for the ponencia to state on the one hand that the President would
be deprived of ample time to reflect on the qualifications of the nominees,
and to show on the other hand that the President has, in recent history, filled
the vacancy in the position of Chief Justice in one or two days. CONCHITA CARPIO MORALES
Associate Justice
It is ironic for the ponencia to recognize that the President may need as
much as 90 days of reflection in appointing a member of the Court, and yet
abhor the idea of an acting Chief Justice in the interregnum as provided for
by law,[21] confirmed by tradition,[22] and settled by jurisprudence[23] to be an
internal matter.

The express allowance of a 90-day period of vacancy rebuts any policy

argument on the necessity to avoid a vacuum of even a single day in the
position of an appointed Chief Justice.

As a member of the Court, I strongly take exception to the ponencias

implication that the Court cannot function without a sitting Chief
Justice.

To begin with, judicial power is vested in one Supreme Court [24] and not in its
individual members, much less in the Chief Justice alone.Notably, after Chief
Justice Puno retires, the Court will have 14 members left, which is more than
sufficient to constitute a quorum.

The fundamental principle in the system of laws recognizes that there is only
one Supreme Court from whose decisions all other courts are required to
take their bearings. While most of the Courts work is performed by its three
divisions, the Court remains one court single, unitary, complete and
supreme. Flowing from this is the fact that, while individual justices may
dissent or only partially concur, when the Court states what the law is, it
speaks with only one voice.[25]

The Court, as a collegial body, operates on a one member, one vote basis,
whether it sits en banc or in divisions. The competence, probity and
independence of the Court en banc, or those of the Courts Division to which
the Chief Justice belongs, have never depended on whether the member
voting as Chief Justice is merely an acting Chief Justice or a duly
appointed one.

IN LIGHT OF THE FOREGOING, I vote to hold, for the guidance of the

Judicial and Bar Council, that the incumbent President is constitutionally
proscribed from appointing the successor of Chief Justice Reynato S. Puno