REPUBLIC OF THE PHILIPPINES

SUPREME COURT
Manila

FERDINAND R. VILLANUEVA G.R. NO. 211833

Presiding Judge For: DECLARATION OF
MCTC-CompostelaNew Bataan, UNCONSTITUTIONALITY,
Compostela, Valley Province, PROHIBITION, INJUNCTION
Petitioner, and MANDAMUS

-versus

JUDICIAL AND BAR COUNCIL,

Respondent.
x-----------------------------------------------------------------------------------------x

REPLY
(to respondents comment)

COMES NOW, Petitioner, Judge FERDINAND R. VILLANUEVA ,

most respectfully submits this REPLY and avers that:

The Petitioner received the Supreme Court en banc notice which

resolved to note the comment of the JBC on August 8, 2014 and the
Office of the Solicitor General comment on October 9, 2014, thus this
reply.

PREFATORY STATEMENT

The SUPREME COURTs view is right.

Xxx the Court is of the view that the rules leave much to be desired
and should be reviewed and revised.1

This case is a no-brainer.

It simply asks for, not the construction, but the application of the
constitutional requirements for incumbent judges-applicants. The
PHILIPPINE CONSTITUTION being SUPREME, there can be no rhyme or
reason for the JUDICIAL AND BAR COUNCIL (JBC) to add its LONG-
STANDING POLICY:
Right or wrong, (long or short), the President, Congress, the Court, the

1
(Francis H. Jardeleza vs.Chief Justice Maria Lourdes P. A. Sereno, the Judicial and Bar
Council and Exe. Sec. Paquito N. Ochoa, .Jr., (G.R. No. 213181 , August 19, 2014)

1
 BOD and the LWUA have no choice but to follow the Constitution2
[Italics supplied].

So shall the JBC. No matter how long is the practice if it is

unconstitutional, precedence will not apply.

The constitution provides the Qualification of a Judge and

additional qualification maybe prescribed by congress:

The only question to be asked to determine the constitutionality of

the assailed JBC Policy is a) The assailed policy is in accordance with the
CONSTITUTION? if not , b) was it prescribed by CONGRESS?

The answer to both question is NO. Therefore the assailed policy is

UNCONSTITUTIONAL. Theres no need for further disquisition.

The Respondents put the cart ahead of the horse. The Respondent
discussed the SHORT LIST to be recommended to the PRESIDENT. While
the subject matter of this case is THE LONG LIST of applicants to be
INTERVIEWED. The Petitioner was disqualified prior to the selection
process. He was not even interviewed. The Respondent JBC and Solicitor
General (SolGen) COMMENTS IS NOT RESPONSIVE. It already argues
DISCRETION and SHORT LIST OF NOMINEES as a result of the
SELECTION process. The controversy is still at the initial stage. Petitioner is
asking to be included in the LONG LIST of qualified applicants.

Be as it may the Petitioner should be among the first to be included in

the SHORTLIST to be recommended to the president not only because he
passed and completed the Pre-Judicature exam but also because Lower Court
Judges are next in rank to the second level courts (RTC); As a precedence the
petitioner is invoking the case of Francis H. Jardeleza vs.Chief Justice Maria
Lourdes P. A. Sereno, the Judicial and Bar Council and Exe. Sec. Paquito N.
Ochoa, Jr.., G.R. No. 213181 , August 19, 2014 where the supreme court held
that he is deemed included in the SHORT LIST.

NATURE OF THE CASE

This PETITION under Rules 63 and 65, assails the constitutionality of

the JBCs LONG-STANDING POLICY which requires from incumbent
judges five (5) years of service before they qualify as applicants for higher
courts.
xxx petitions for certiorari and prohibition are appropriate remedies
to raise constitutional issues and to review and/or prohibit or nullify the acts
of legislative and executive officials [ARAULLO PERSON, ET.AL. vs
AQUINO ET.AL. GR Nos. 209287, ETC., July 1, 2014].

2
Tawang Multi-Purpose Cooperative vs La Trinidad Water District GR No. 166471 March 22, 2011

2
 This case is also similar to CHAVEZ vs JBC GR No. 202241 July 17,
2012 where this Honorable Court ruled:

Pursuant to the rule that the nature of an action is determined by the

allegations therein and the character of the relief sought, the Court views the
petition as essentially an action for declaratory relief under Rule 63 of the
1997 Rules of Civil Procedure. xxx

At any rate, due to its serious implications, not only to government

processes involved but also to the sanctity of the Constitution, the Court
deems it more prudent to take cognizance of it. After all, the petition is also
for prohibition under Rule 65 seeking to enjoin Congress from sending two
(2) representatives with one (1) full vote each to the JBC.

It is filed directly with this Court, because:

1. The Chairperson of the JBC is the Chief Justice herself. And as

already said, this case simply calls for the application of the CONSTITUTION
which the Chief Justice (like the rest in the JBC) is expected to do.

2. But if the Supreme Court regales itself with the exercise of

construing the CONSTITUTION and the laws, then herein case presents an
opportunity the main issue of which is purely legal: Is JBCs long standing policy in
accordance with the PHILIPPINE CONSTITUTION?

3. Its resolution is of transcendental importance not only for the

Applicant- Petitioner and the rest of aspiring incumbent judges but also for the
INTEGRITY of this Honorable Court whose members HAVE NOT
COMPLIED with the JBCs 5 year-service requirement, among others:

a. Hon. Justice MARIANO C. DEL CASTILLO was

appointed as Municipal Trial Court Judge of San Mateo, Rizal in 1989.
He was promoted to the Regional Trial Court (RTC) of Angeles City in
1992 or short of 2 years by JBCs long-standing policy.

b. Hon. Justice ESTELA M. PERLAS-BERNABE was

appointed as Metropolitan Trial Court Judge of the Makati City, Br-66 in
1996. Four years after, or one year short of the five-year JBC
requirement, she was promoted to the RTC-Makati City, Br-142. Then
she was promoted to the CA on March 15, 2004, again below the 5-year
stay requirement.

c. Hon. Chief Justice MARIA LOURDES P. A. SERENO

was appointed on August 16, 2010 as the 169th Justice. More or less two
years later she was appointed as the 24th Chief Justice.

d. Most or majority of the Supreme Court Justices was not

previously appointed as Lower Court Judge and some was never a Judge;

3
 FACTS OF THE CASE

Petitioner was admitted to the BAR on March 20, 2003 and had been in
the practice of law for almost 12 (11& 7 mos) years. The one (1) year and
Ten(10) months as of October 2014 of which were spent in the Judiciary as
Presiding Judge of the Municipal Circuit Trial Court of Compostela-New
Bataan (He took his oath as a Judge December 3, 2012). On September 27,
2013 he filed his APPLICATION through electronic mail for the position of
PRESIDING JUDGE in the following courts: RTC-Br 31 (Tagum City); RTC-
Br 13 (Davao City); and RTC-Br 6 (Prosperidad, Agusan del Sur, lately he
manifest his intention if qualified in RTC, Branch 3, Nabunturan Comval).

On December 18, 2013 the JBC informed3 him that he could not be
considered an applicant. He was not listed as among those to be interviewed.
So he filed a PROTEST and a RECONSIDERATION both of which were
acknowledged by JBC in its letter4 dated January 3, 2014; then in another, dated
February 3, 2014, which is now the subject of this PETITION:

Further to our letter dated 3 January 2014 we would like to inform Your Honor that during its en
banc meeting on 27 January 2014, the Judicial and Bar Council (JBC) duly noted your letter and
agreed to maintain its long-standing policy of opening the chance for promotion to second level courts to,
among others, incumbent judges who served in their current position for at least five (5) years. Hence,
since Your Honor has just been a judge for more than one year only, the JBC stood firm on its decision
of not including you yet in the list of applicants for the Regional Trial Court (RTC), Branch 31,
Tagum City; RTC Branch 13, Davao City; and RTC, Branch 6, Prosperidad, Agusan del Sur.
[Underscoring supplied]

Nevertheless, with your permission, we shall keep your application documents on file for future
reference.

Very truly yours,

(Sgd) ANNALIZA S. TY-CAPACITE

JBC Executive Officer
Noted:

(Sgd)AURORA SANTIAGO LAGMAN

Acting Executive Committee Chairperson &
JBC Regular Member

Despite the simplicity, the above narration of events was unfortunately

misread by the JBC and the Solicitor General. In their
ANSWER/COMMENT, they argued DISCRETION and LIST OF
NOMINEES as if a SELECTION process had taken place. But there was
none made yet as of this writing. Thus for their sake, it is stressed: the
Petitioner was disqualified at the RECRUITMENT PHASE or prior to the
SELECTION PROCESS, even if he met what the JBC referred to as PRIMA
FACIE QUALIFICATIONS.

3
Annex A-(attached in the Petition)
4
Annex B Underscoring supplied.- (attached in the Petition)

4
 ISSUES

The primary issue herein is WHETHER OR NOT THE JBCS LONG-

STANDING POLICY of requiring 5-year service from incumbent judges-
applicants to the RTC is CONSTITUTIONAL?

DISCUSSION

NO, its not constitutional.

The JBCs LONG STANDING POLICY must be struck down.

The arguments in the PETITION is re-pleaded in this Reply.

But first the SUB-ISSUES. These were brought out by JBC and Solicitor
Generals COMMENT.

PROCEDURAL ISSUES

Sub-issue 1: Whether or not the primary issue could become subject of a

petition for declaratory relief considering that there was already a breach (or that Petitioner
was already denied as Applicant).

YES, when it concerns constitutionality. The issue must be squarely

resolved by this Honorable Court otherwise the JBCs long-standing policy,
unwritten at that, would continue to be enshrined, walking all over the
CONSTITUTION and demanding compliance when there should have been
none:
xxx a law, otherwise unconstitutional, would lapse into
constitutionality by the mere failure of the proper party to promptly file a
case to challenge the same5

Since the Policy was not published or was included in the published
Rules the Petitioner has the first opportunity to know said policy when the JBC
informed him in a letter why he was disqualified. Thus, Logic dictates that the
petition is timely as it was filed immediately after the knowledge of the
UNWRITTEN POLICY.

Sub-issue 2: Whether or not the petition for declaratory relief can be

filed directly with this court?

Yes. This court may brush aside the hierarchy of courts due to the
importance of the issues, if it raises constitutional issue of transcendental
importance to the public and if the redress desired cannot be obtained in the
appropriate courts or where exceptional compelling circumstances justify
availment of a remedy within and calling for the exercise of our primary
jurisdiction and lately if involves the supervisory power of the Supreme Court
over the JBC;
5
[Carbonilla et.al. vs Board of Airlines Representative G.R. No. 194276 September
14, 2011].
5
 In Kilosbayan v. Guingona this Honorable Court brushed aside the hierarchy of
courts due to the importance of the issues therein to determine whether or not the
branches have kept themselves within the limits of the Constitution and the laws and
that they have not abused the discretion given to them6

In Chavez v. PEA-Amari , this Honorable Court had occasion to state: PEA and
AMARI The principle of hierarchy of courts applies generally to cases involving factual
questions. As it is not a trier of facts, the Court cannot entertain cases involving factual
issues. The instant case, however, raises constitutional issues of transcendental
importance to the public. The Court can resolve this case without determining any
factual issue related to the case. Also, the instant case is a petition for mandamus
which falls under the original jurisdiction of the Court under Section 5, Article VIII of
the Constitution. We resolve to exercise primary jurisdiction over the instant case.

Moreover, in Santiago v. Vasquez , this Honorable Court ruled that petitions for
certiorari, prohibition, or mandamus, though cognizable by other courts, may directly be
filed with the Supreme Court if the redress desired cannot be obtained in the appropriate
courts or where exceptional compelling circumstances justify availment of a remedy within
and calling for the exercise of our primary jurisdiction

Sub-issue 3: Whether or not certiorari and mandamus may lie.

YES. The arguments that certiorari is not the proper remedy as JBC is
not a judicial or quasi-judicial body is no longer availing:
xxx the remedies of certiorari and prohibition are necessarily broader in
scope and reach, and the writ of certiorari or prohibition may be issued to correct
errors of jurisdiction committed not only by a tribunal, corporation, board or officer
exercising judicial, quasi-judicial or ministerial functions but also to set right, undo
and restrain any act of grave abuse of discretion amounting to lack or excess of
jurisdiction by any branch or instrumentality of the Government, even if the latter
does not exercise judicial, quasi-judicial or ministerial functions. This application is
expressly authorized by the text of the second paragraph of Section 1, supra.

Thus, petitions for certiorari and prohibition are appropriate remedies to

raise constitutional issues and to review and/or prohibit or nullify the acts of
legislative and executive officials7

In their ANSWER, the JBC argues that the exercise of COMING UP

WITH NOMINEES could not be made subject of a certiorari (mandamus).

But JBC (and the Solicitor General) missed the facts of this case!

The questioned act was not that of coming up with the shortlist but that
of excluding the Petitioner from the long list of applicants. He was denied
while still at the RECRUITMENT phase ---during which the JBC and/or

6
(Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, SOURCE, citing
Ex Parte Levitt, 303 US 633. (Emphasis supplied) 19 Macalintal v. Comelec, G.R No. 157013 (July 10, 2003).
20 Id. 21 See Uy v. Contreras, supra; Manalo v. Gloria, 236 SCRA 130 [1994]; People v. Court of Appeals, 301
SCRA 566 (1999). 22 232 SCRA 110.
7
Araullo Person, et.al. vs Aquino et.al. G.R. Nos. 209287, etc., July 1, 2014
underscoring supplied].

6
through its Secretariat would have only received the applications. Then, upon
what appeared on the face of the documents or finding of PRIMA FACIE
QUALIFICATION, it would have published the list in newspapers. After
submission of the documentary requirements, it would have to notify the
applicants regarding the schedule of interview and it would have to arrange the
venues for the interview.

All these acts in the RECRUITMENT phase will not require JBC to
exercise judgment. These are MINISTERIAL DUTIES. Hence:

1. The failure to act by JBC can be subject of a certiorari

(mandamus); and,

2. The inclusion by JBC of the 5-year stay from incumbent judges

applying for higher courts is a misplaced exercise of its ministerial duty, a
usurpation of Congressional powers and a blatant violation of the
PHILIPPINE CONSTITUTION.

It has been judicially settled that a petition for certiorari is a proper

remedy to question the act of any branch or instrumentality of the government
on the ground of grave abuse of discretion amounting to lack or excess of
jurisdiction by any branch or instrumentality of the government, even if the
latter does not exercise judicial, quasi-judicial or ministerial functions.8

Sub-issue 4. Whether or not the JBC may be PROHIBITED.

YES, JBC may be prohibited and enjoined, not on its duty to

recommend but on its inclusion of a qualification (the 5-year service) which is not
provided by the CONSTITUTION or laws.

Instead what the JBC could have done was to make the length of service
as one of the criteria and to assign points thereto. For example if the applicant
is a judge for more than 5 years in lower court he gets 5 points. If he has less
than 5 years, he only gets, say, one point. Or any other means by which the
years of experience as trial judge may be factored in the required competence
for the vacant position. In fact many times the JBC and the President brush
aside seniority in the selection of the Chief Justice itself.

Definitely the JBC cannot disqualify an applicant if he meets all the

requirements set by the CONSTITUTION and by the Congress, just like the
Petitioner herein. To reiterate:

Thus, petitions for certiorari and prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit or nullify the acts of legislative
and executive officials.9

8
(Francis H. Jardeleza vs.Chief Justice Maria Lourdes P. A. Sereno, the Judicial and Bar Council and Exe. Sec.
Paquito N. Ochoa, .Jr., (G.R. No. 213181 , August 19, 2014)

9
[Araullo Person, et.al. vs Aquino et.al. G.R. Nos. 209287, etc., July 1, 2014
7
 SUBSTANTIAL ISSUES

Sub-issue 5. Whether or not there is an actual controversy.

Yes, the Solicitor General is right in saying that the JBC MAY SET the
standards in choosing the nominees. The emphasis is on NOMINEES. This
Petitioner agrees because the CONSTITUTION and the laws only provide for
the qualifications for APPLICANTS; but none for NOMINEES who will be
chosen from the set of APPLICANTS and are considered to have meet the
minimum qualifications.

Yes again, the Solicitor General is right in saying that the power of
appointment is essentially discretionary and must be performed by the
authorized person according to his best lights, the only condition being that the
appointee possesses the qualifications required by the CONSTITUTION and
the laws.

This Petitioner once more agrees. The Petitioner had all the
qualifications WRITTEN in the CONSTITUTION and the laws. Now, Mr.
Solicitor General, why was he disqualified as an APPLICANT?

Here is the ACTUAL CONTROVERSY missed by the Solicitor

General:

First, the subject of the controversy is the constitutionality of the long

standing unwritten Policy five year service as lower Court Judge

The Petitioner was denied from becoming an APPLICANT because according to

JBC he lacked five years of service in the judiciary. This requirement was NOT
provided in the CONSTITUTION, in the laws, in the JBC Rules, and in the list
of published requirements.

Second, the controversy is between two parties that have adverse

interests. The respondent refuse to qualify the Petitioners as applicants when
the petitioner meets the minimum qualification prescribed by the constitution
and congress.

Third, it is clear that Petitioner has a legal and substantive interest in the
implementation of the assailed unwritten long standing policy of the
Respondent. Petitioner has adequately shown that, he is an applicant of the
vacant position in the RTC 31, Tagum City, RTC 13, Davao City and ,Branch
6, Properidad, Agusan del Sur was disqualified by the respondent and was not
considered as applicant.

underscoring supplied].

8
 Finally, the issue raised by respondent is ripe for judicial determination,
because litigation is inevitable for the simple and uncontroverted reason that
respondent was not included as applicants.

In adding a requirement when there should have been none, the JBC
violated Petitioners demandable rights10:

a. His constitutional right to DUE PROCESS:

b. His constitutional right of LIBERTY.
c. His constitutional right to EQUAL OPPORTUNITY of
employment:
d. His constitutional right to EQUALITY:
e. His constitutional and statutory right under Par 2, Sec 7 of Art
VIII of the 1987 Constitution , in relation to BP129, Section 10 R.A.
8557 which provides for the qualification of an RTC Judge;
f. His statutory rights under PD No. 807; Next in Rank Rule;

Main Issue. Whether or not JBCs long-standing policy is constitutional.

It is UNCONSTITUTIONAL.

For simple reason.

ONLY THE CONSTITUTION AND THE CONGRESS CAN

PRESCRIBED QUALIFICATION OF A JUDGE IN REGIONAL TRIAL
COURT. The JBC is not allowed to add to the qualification of an RTC Judge
either directly or indirectly IN THE GUISE OF A LONG STANDING
POLICY. What cannot be done directly should not be done indirectly it is a
circumvention of the law.

The assailed JBC unwritten Policy is UNCONSTITUTIONAL for the

following grounds:

a. It is in violation of Sec. 7 (1) Art. VIII of the constitution and

Sec. 15 of BP 129; Sec 10 of R.A. 8557, Rule, 2 & 10 sec 1 of JBC
Rule 009, which provides for the qualification of RTC Judge;

In the above cited provision of the constitution, laws and rules, all
provides for ten(10) year practice of law, it does not mentioned of the
five year length of service as a lower court judge as additional
qualification;

10 A right is a claim or title to an interest in anything whatsoever that is enforceable by law. [7] An
obligation is defined in the Civil Code as a juridical necessity to give, to do or not to do. [8] For every right
enjoyed by any person, there is a corresponding obligation on the part of another person to respect such
right. Xx(Makati stock exchange inc. et.al. vs. Miguel V. Campos, G.R. No. 138814, April 16, 2009)

9
 To determine if the petitioner meets the 10 year practice of law
as a minimum requirement is a matter of simple addition . Mathematics
is an exact science we dont need to argue. The Plaintiff was admitted in
the Bar on March 20, 2003 and had been in the practice of law for
almost 12 (11& 7 mos. as of Oct. 2014) years

b. Violation of equal protection;

One of the basic principles on which this government was founded and
which the JBC ought to uphold, is that equality of right provided in Section 1
Article III of the PHILIPPINE CONSTITUTION:

The equal protection of the laws is embraced in the concept of due process, as every
unfair discrimination offends the requirements of justice and fair play. It has been
embodied in a separate clause, however, to provide for a more specific guaranty against
any form of undue favoritism or hostility from the government. Arbitrariness in general
may be challenged on the basis of the due process clause. But if the particular act
assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it
down is the equal protection clause.

According to a long line of decisions, equal protection simply requires that all persons
or things similarly situated should be treated alike, both as to rights conferred and
responsibilities imposed. It requires public bodies and institutions to treat similarly
situated individuals in a similar manner. The purpose of the equal protection clause is
to secure every person within a states jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statue or by its improper
execution through the states duly constituted authorities. In other words, the
concept of equal justice under the law requires the state to govern impartially,
and it may not draw distinctions between individuals solely on differences that
are irrelevant to a legitimate governmental objective.xxx 11

JBC would argue that there was no UNDUE CLASSIFICATION

because the requirement has a rational basis. JBC just did not spell out however
that this rational basis is actually its COLLECTIVE JUDGMENT, described
earlier. Nonetheless, no matter how RATIONAL the requirement may
seem to JBC, it remains UNCONSTITUTIONAL

This above mentioned constitutional right are demandable, it is not a

privilege BUT A RIGHT. The arguments of the petitioner is not based on
surmises and conjectures but based on facts, provision of the constitution,
statutes and Jurisprudence cited by the petitioner.

It is very clear JBC is not allowed to add another qualification.

There is violation of equal protection because it was not uniformly

applied. To support is the profile of SC Justices; Hon. Justice Mariano C. del
Castillo, Hon. Justice Estela M. Perlas- Bernabe, they did not comply with the

11
Biragao vs Philippine Truth Commission of 2010 , etc., G.R. No. 193036 December 7,
2010

10
said policy when they were promoted from Lower Court Judge to RTC Judge.
The Supreme Court may order the Court Administrator to provided list of
RTC Judges who did not served five(5) years as lower court judges but was
appointed as RTC Judge or Justices in the CA who did not comply the same.

Concept of the Equal Protection Clause

One of the basic principles on which this government was founded is that of
the equality of right which is embodied in Section 1, Article III of the 1987
Constitution. The equal protection of the laws is embraced in the concept of
due process, as every unfair discrimination offends the requirements of
justice and fair play. It has been embodied in a separate clause, however, to
provide for a more specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general may be challenged on
the basis of the due process clause. But if the particular act assailed partakes
of an unwarranted partiality or prejudice, the sharper weapon to cut it down
is the equal protection clause.[Citations omitted]12

THE POLICY IS with UNWARRANTED PARTIALITY AND

PREJUDICIAL.

Unwarranted because it is only the constitution and congress who

should prescribed the qualification of an RTC Judge. JBC has no power.

Prejudicial because judges in lower court with below five year experience
is disqualified even if his practice of law is more than ten years while non
Judges is not required of the five(5) years service as a Judge only ten years
practice of law.

The Respondents argues that the classification is not offensive to equal

protection, as it has rational basis.

The Policy is not reasonable.

As opposed to the respondents arguments the assailed policy is unjust

and discriminatory for an incumbent Judge. Experience or Practice should
cover all kinds of practice of law. The number of years as a judge should be
considered as practice of law not a separate qualification.

It is unreasonable because if you are an incumbent lower court judge no

matter how long you practice in law , i.e., thirty years, forty years or more, it will
not matter if you lack the five(5) year length of service as a lower court judge
you are disqualified.

It is unreasonable because it was not applied uniformly. With all due

respect if you look at the profile of the Supreme Court Justices themselves.

12
(Louis Barok C. Biraogo, Vs. The Phil Truth Commission of 2010, G.R. No.
192935, Re Edcel Lagman et.al. vs. Ex. Sec Paquito Ochoa, et.al. ,G.R. No. 193036,
Dec7, 2010)

11
Two Justices was once a Lower Court Judge and less than five(5) years was
appointed as RTC Judge.

The JBC was nearly on the track when in year 2007 JBC adopted the
Points and survey system, so that the selection will be objective and not subject
to biases, whims and caprices. For unknown reason it was not implemented,
the JBC goes off track.

Notwithstanding what is the RATIONAL OR REASON behind the

POLICY if there is any, It remains unconstitutional because par 2, Sec 7 of
Art VIII of the 1987 Constitution Provides that only congress can prescribed
additional qualification for lower court Judges13.

IT IS VERY CLEAR IT IS NOT THE JBC WHO SHOULD

PRESCRIBED THE QUALIFICATION OF JUDGES.

The Supreme Court said.

True to its constitutional mandate, the Court cannot craft and tailor
constitutional provisions in order to accommodate all of situations no matter how
ideal or reasonable the proposed solution may sound. To the exercise of this
intrusion, the Court declines.14

In the JBCs Rule 009 the five years assailed Policy is not also listed as
disqualification.

If you relate the minimum qualification of a member of the

Supreme Court and Collegiate Courts you will find that experience as a Judge is
not indispensable or mandatory to wit:

Sect. 7, Article VIII JUDICIAL DEPARTMENT of the constitution:

Section 7. (1) No person shall be appointed Member of the Supreme Court or any lower collegiate
court unless he is a natural-born citizen of the Philippines. A Member of the Supreme
Court must be at least forty years of age, and must have been for fifteen years
or more, a judge of a lower court or engaged in the practice of law in the
Philippines.

Meaning the qualification is either 15 years as a Judge or 15 years

practice of law in the Philippines. How much more for RTC position when the
experience as a Judge was not even mentioned in the constitution or statutes to
wit:

13
2. The Congress shall prescribe the qualifications of judges of lower courts, but no person may be
appointed judge thereof unless he is a citizen of the Philippines and a member of the Philippine Bar.
14
(Francisco I. Chavez, vs JBC, G.R. No. 202242, April 16, 2013)

12
 5. Section 15, BP 129 AN ACT REORGANIZING THE JUDICIARY,
APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES

Qualifications. No persons shall be appointed Regional Trial Judge unless he is a

natural-born citizen of the Philippines, at least thirty-five years of age, and for at least ten years,
has been engaged in the practice of law in the Philippines or has held a public office in the
Philippines requiring admission to the practice of law as an indispensable requisite

In fact Rule 2 of JBC -Rule 009 Constitutional and Statutory

Qualifications for Appointment provides that:
Section 1. Qualifications applicable to all members of the Judiciary and the Ombudsman and his
Deputies.
Section 7. Additional qualifications of Judges of the Regional Trial Courts No person
shall be appointed Judge of the Regional Trial Court unless he is at least thirty-five years of age,
and, for at least ten years has been engaged in the practice of law in the
Philippines or has held a public office in the Philippines requiring admission
to the practice of law as an indispensable requisite. (B.P. Blg.129.Section 15).

There was no mention of five years service as Judge in the Lower Court.

c. Violation of Sec. 1, Art. III- due process ( substantial and

procedural) and Liberty;

By the JBCs term of LONG-STANDING POLICY, JBC admits that it

is UNWRITTEN, unpublished and can never be found in its RULES. Ergo,
the Petitioner as well as ALL OTHER APPLICANTS were never informed
and could never be informed about it prior to their filing of application papers.

Xx After a tedious review of the parties respective arguments, the Court

concludes that the right to due process is available and thereby demandable as a
matter of right. The Court does not brush aside the unique and special nature of JBC
proceedings. Indeed, they are distinct from criminal proceedings where the finding of
guilt or innocence of the accused is sine qua non. The JBCs constitutional duty to
recommend qualified nominees to the President cannot be compared to the duty of the
courts of law to determine the commission of an offense and ascribe the same to an
accused, consistent with established rules on evidence. Even the quantum of evidence
required in criminal cases is far from the discretion accorded to the JBC. The Court,
however, could not accept, lock, stock and barrel, the argument that an
applicants access to the rights afforded under the due process clause is
discretionary on the part of the JBC. While the facets of criminal and administrative
due process are not strictly applicable to JBC proceedings, their peculiarity is
insufficient to justify the conclusion that due process is not demandable.15

The assailed unwritten JBC rule is a deprivation of the right to work and
to make a living which is a property right and requires due process;

15
(Francis H. Jardeleza vs.Chief Justice Maria Lourdes P. A. Sereno, the Judicial and Bar Council and Exe. Sec.
Paquito N. Ochoa, .Jr., (G.R. No. 213181 , August 19, 2014)

13
 Section 1, Article III, of the Constitution states that no person shall be deprived of
property without due process of law. Protected property includes the right to work and
the right to earn a living. In JMM Promotion and Management, Inc. v. Court of Appeals,[3] the
Court held that:

A profession, trade or calling is a property right within the meaning of

our constitutional guarantees. One cannot be deprived of the right to work
and the right to make a living because these rights are property rights, the
arbitrary and unwarranted deprivation of which normally constitutes an actionable
wrong. (Emphasis supplied)16

Moreover, The equal protection of the laws is embraced in the concept

of due process, as every unfair discrimination offends the requirements of
justice and fair play. It has been embodied in a separate clause, however, to
provide for a more specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general may be challenged on
the basis of the due process clause.17

The petitioner, was not given the opportunity to be heard.

Despite meeting the minimum qualification he was not considered as

applicant. He was not interviewed and was not able to present himself, his
accomplishment in his 32 years in government service, almost 12 years of
which is spent in the practice of law was not considered simply because of the
assailed policy.

It is also a violation of Procedural Due Process because it is

UNWRITTEN and was not Published. It is in violation of the JBCs OWN
POLICY of TRANSPARENCY as stated in its WHEREAS CLAUSE OF JBC
- RULE 009.

The JBC is correct that the petitioner filed a motion for reconsideration
and questioned its policy of excluding judges with less than three years of
service which was wrong because the policy is five years. It follows that the
petitioner is ignorant of the policy as it was not published. Further, petitioner
do not know of what JBC other unwritten policy on:

1) Length of service required for an RTC Judge to apply for collegiate

courts (CA,CTA, etc.).

2) Length of service required for collegiate Courts Justices to apply for

Supreme Court Justice.

16
(Antonio M. Serano vs. Gallant Maritime Services, Inc. and Marlow Navigation Co. Inc., G.R. No.
167624)

17
(Louis Barok C. Biraogo, Vs. The Phil Truth Commission of 2010, G.R. No. 192935, Re Edcel Lagman
et.al. vs. Ex. Sec Paquito Ochoa, et.al. ,G.R. No. 193036, Dec7, 2010)

14
 3) Length of service for lower Court Judge who apply directly as
Justice to the Supreme Court?

The higher the position the more stringent the standard should be. Why
require five(5) year length of service for RTC position, when the same is not
required for the position of Justices in the Supreme Court.

If there is a policy on the above mentioned situation, it is unwritten, and

thus unknown to the applicant and the public or stake holder. We do not know
to whom and when it will be applied. Is it not unfair, arbitrary, unreasonable,
unjust, capricious, whimsical, and grave abuse of discretion on the part of the
JBC?

d. Violation of constitutional right of LIBERTY.

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to
include the right to exist and the right to be free from arbitrary restraint or
servitude. The term cannot be dwarfed into mere freedom from physical restraint of
the person of the citizen, but is deemed to embrace the right of man to enjoy the
facilities with which he has been endowed by his Creator, subject only to such
restraint as are necessary for the common welfare.[68] In accordance with this case,
the rights of the citizen to be free to use his faculties in all lawful ways; to live and
work where he will; to earn his livelihood by any lawful calling; and to pursue any
avocation are all deemed embraced in the concept of liberty.[69]

The U.S. Supreme Court in the case of Roth v. Board of Regents,[70] sought to
clarify the meaning of liberty. It said:

While the Court has not attempted to define with exactness the liberty. . .
guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not merely
freedom from bodily restraint but also the right of the individual to contract, to
engage in any of the common occupations of life, to acquire useful knowledge,
to marry, establish a home and bring up children, to worship God according to the
dictates of his own conscience, and generally to enjoy those privileges long
recognizedas essential to the orderly pursuit of happiness by free men. In a
Constitution for a free people, there can be no doubt that the meaning of
liberty must be broad indeed.18

The Policy curtails the right of Liberty of the incumbent Lower Court
Judges from arbitrary restraint to apply for RTC Judge no matter how long they
practice law as long as they have not serve for five(5) years in the lower court;

e. Sec. 3, Art XIII of the constitution- equality of employment

opportunities;

Petitioner had a clear legal right to EQUAL OPPORTUNITY in

employment and be CHOSEN alongside other Applicants who also met the

18(City of Manila, Hon. Alfredo S. Lim as mayor of Manila, et.al. vs Hon. Perfecto A.S. Laguio Jr., as
presiding Judge RTC, Manila and Malati Tourist Dev. Corpn., G.R. No. 118127. April 12, 2005)

15
same standards. While the Respondent is right in saying that the opportunity of
appointment to Judicial Office is a privilege, and not a Judicially enforceable right that maybe
properly claimed by person19; JBC is wrong in closing the door to this opportunity
too soon.

By providing the standards for the RTC Judge, the Constitution is

essentially saying that those who meet these qualifications, have the RIGHT to
APPLY and be considered for the said opportunity. By adding 5-year service
qualification, the JBC is saying, it knows better than the Constitution.

The common denominator in all applicants for RTC is the ten (10) year
practice of law. There should be no distinction on how this practice of law was
earned it maybe in private practice, as a government lawyers, etc. But because
of the assailed policy even if you meet the ten year practice of law you will be
disqualified if you have not served as lower court judge for five(5) years; Thus
there is a clear in equality of employment.

Sec 3 of Art XII of the constitution provides: The State shall afford full protection to labor, local
and overseas, organized and unorganized, and promote full employment and equality of
employment opportunities for all.

f. Violation PD No. 807; Next in Rank;

Incumbent Lower Court Judges may be immediately included not only in

the long list but also in the shortlist to be recommended to the president for
the following reason:

1. The Supreme Court should take Judicial notice that all

applicants whether Lower Court or second level courts undergoes the
same exam ( WRITTEN AND PSYCHOLOHICAL EXAM) conducted
by the JBC. It is the JBC who conducted interview, when you apply for
Judges in Lower Court or in RTC. Almost the same qualification was
prescribed by the constitution and by congress (except in lower court
the requirement is five(5) year practice of law while in RTC ten(10) years
practice of law).

2. Looking at the Hierarchy of Courts, Judges in the

lower court are the next in rank. Although, it is not mandatory nor
peremptory requirement for the next-in-rank to be appointed but they
would be among the first to be considered for the vacancy if qualified.

Xx In the case of Taduran vs. Civil Service Commission, et al, 9 this Court had the
opportunity to pass upon the extent of the applicability of the next-in-rank rule.
The pertinent provisions of Presidential Decree No. 807 state:

19
Page 18 of ANSWER/comment

16
 Sec. 19. Recruitment and Selection of Employees..----
xxx xxx xxx
(3) When a vacancy occurs in a position in the second level of the Career
Service as defined in Section 7, the employees in the government service who
occupy the next lower positions in the occupational group under which the vacant
position is classified and in other functionally related occupational groups and who
are competent, qualified and with the appropriate civil service eligibility shall be
considered for promotion.
xxx xxx xxx
(5) If the vacancy.is not filled by promotion as provided herein the same
shall be filled by transfer of present employees in the government service, by
reinstatement, by re-employment of persons separated through reduction in force,
or by appointment of persons with the civil service eligibility appropriate to the
positions.
xxx xxx xxx
(6) A qualified next-in-rank employee shall have the right to appeal initially,
to the department head and finally to the Office of the President an appointment
made (1) in favor of another next-in-rank employee who is not qualified, or (2) in
favor of one who is not next-in-rank, or (3) in favor of one who is appointed by
transfer and not next- in-rank, or by reinstatement, or by original appointment if the
employee making the appeal is not satisfied with the written special reason or
reasons given by the appointing authority for such appointment: . . .
which Taduran interpreted in this wise:
We find no mandatory nor peremptory requirement in the foregoing
provision that persons next-in-rank are entitled to preference in appointment. What
it does provide is that they would be among the first to be considered for the
vacancy if qualified, and if the vacancy is not filled by promotion, the same shall
be filled by transfer or other modes of appointment.20

Considering that the petitioner is incumbent, applying the above law the
petitioner should be among the first to be considered for the promotion to
RTC Judge.

JBCs and SolGen argument is however flawed, baseless, illogical and

DISCRIMINATORY:

1. COLLECTIVE JUDGMENT is a vague term. But what it really means is:

hey-we-did-not-conduct-time-and-motion-studies-but-we-needed-to-back-up-our-action-let-us-
just-have-this. Judgment can be SUBJECTIVE and OBJECTIVE. So which will
describe JBCs COLLECTIVE JUDGMENT? The answer is obvious but
disconcerting. For a constitutionally-created body and for the high stature
brought by the positions of its members, the JBC fell short of the expected
sophistication in its work.

20
Perfecto Espanol, vs. CSC, Federico Alday, Jr., and Orlando L. Bulseco, G.R. No.
85479, March 3, 1992.

17
2. JBC argued that the 5-year stay required from incumbent municipal judges-
applicants is made to streamline the selection process. JBC however missed the
concept. To STREAMLINE means to make the selection process more
efficient. This necessarily implies that the measure adopted (5-year stay
requirement) be APPLIED TO ALL APPLICANTS or else, the purpose of
efficiency will not be achieved. The policy is not streamlining but rather
prescribing additional qualification.

And such was what actually happened.

3. If indeed one needs five years to be equipped with adjudicative skills, then
such should have been required from ALL applicants; and not just from
incumbent municipal judges-applicants. And because its a need, the same five
years judicial experience should have been required from the current more or
less eight(8) Supreme Court Justices to include the Hon Chief Justice MARIA
LOURDES P.A. SERENO prior to their nomination and appointment. They
are not gods anyway to be excused from this COLLECTIVE JUDGMENT.

4. Here is a million-dollar question: All documentary requirements present, what

separates an incumbent municipal judge-applicant (1 year as judge; 9 years as fiscal) from
these applicants: 1) a labor lawyer of 10 years; 2) a PAO lawyer of 10 years; and 3) a
corporate lawyer of 10 years?

The JBC miserably failed to respond to this. But its COLLECTIVE

JUDGMENT would have two answers:

a. The municipal judge-applicant still needs to hone his

professional skills and is not yet ready to be an RTC judge; while the
three applicants are better qualified to unclog the dockets in the RTC.

b. The municipal judge-applicant has no integrity, probity,

independence and competence yet. He needs four more years to develop
these qualities. The rest, are men of integrity, probity, independence and
competence so they qualify as RTC judges.

Pathetic reasoning.

JBC Rule 009 provides how Integrity, probity and independence is

measure to wit: JBC RULE 009, Provides: 1) Rule 4 procedure in determining
INTEGRITY, 2) Rule 5 procedure to determine Probity and independence, 3)
Rule 6 Sound Physical, Mental and emotional condition.

LENGTH OF SERVICE is not even mentioned in the determination

of INTEGRITY, PROBITY/ INDEFENDENCE AND COMPETENCY.

The five year stint in the judiciary cannot be an evidence of integrity,

probity and independence it only shows length of service.

What is even more pathetic is how JBC characterized UNCLOGGING

18
of dockets as one that can be mastered only after five years experience in the
judiciary. This kind of conclusion is however, arrived at by somebody without
court practice.

5. That it is a standards / criteria in choosing its nominees. Subject only to the minimum
qualification required by the constitution and law.

If the policy is a set of criteria not a minimum requirement the

Petitioner should have been allowed to participate in the selection process. The
five years service in the lower court as a Judge should have been assigned
points only. Since it is subject to the minimum qualification required by the
constitution and the petitioner meets the said minimum qualification he should
have not been disqualified;

Speaking of minimum qualification it includes implementation of

Section 10 R.A. 8557, February 26, 1998 which requires completing and
passing the pre- judicature program. The irony is that the petitioner passed and
completed the pre-judicature exam but other applicants and judges were
appointed without complying the minimum requirements of RA 8557.

In reality, efficient case management can be done without need of that

5-year experience. To know how, JBC needs only to ask from more or less
eight(8) or majority of the Supreme Court Justices appointed to their positions
sans any experience in the judiciary.

If unclogging dockets be the basis, this Petitioner-Applicant has reduced

the MCTC-Compostela-New Bataan docket from 303 (166 pending+ 137
newly filed) cases upon his assumption to duties in December 2012 less
disposed cases of 238 cases the difference is 65 cases pending as of August
2014.
Yes Virginia, by 79 % in one year and 8 mos(or less than JBCs 5 years).

6. The COLLECTIVE JUDGMENT is vague but the PHILIPPINE

CONSTITUTION is simple and clear:

Art VIII Section 7. (1) No person shall be appointed Member of the

Supreme Court or any lower collegiate court unless he is a natural-born
citizen of the Philippines. A Member of the Supreme Court must be at least
forty years of age, and must have been for fifteen years or more, a judge of a
lower court or engaged in the practice of law in the Philippines.

(2) The Congress shall prescribe the qualifications of judges of lower

courts, but no person may be appointed judge thereof unless he is a citizen
of the Philippines and a member of the Philippine Bar.

The PHILIPPINE CONSTITUTION mentions no five-year

requirement from incumbent municipal judges-applicants. Neither do BP 129

(AN ACT REORGANIZING THE JUDICIARY):

19
 Section 15. Qualifications. No persons shall be appointed Regional
Trial Judge unless he is a natural-born citizen of the Philippines, at least
thirty-five years of age, and for at least ten years, has been engaged in the
practice of law in the Philippines or has held a public office in the
Philippines requiring admission to the practice of law as an indispensable
requisite

As well as Section 10 of RA 8557.

These should have been enough for the JBC as standards for
APPLICANTS..

However should JBC see fit to come up with POLICIES, the

same should fall squarely within those allowed by the CONSTITUTION and
laws (BP 129 and RA 8557) such as JBC RULE 009 which provides for the
determination of the integrity, probity and independence and physical , mental
and emotional fitness of the applicant.

Appropriately, JBC RULE 009 does not include the five-year

requirement!

7. The Solgen argued that there is substantial distinction between Lower Court Judges
with five(5) years and below five(5) years experience.

The distinction is erroneous. The requirement is ten(10) years practice

of law in the Philippines. There is no distinction between ten(10) years in
private practice , ten(10) years as a Prosecution, ten(10) years as public attorney,
ten years as a labor lawyer, or ten years of the combination of private and
government practice. In the case of petitioner it is almost twelve(12) years law
practice as a government lawyer to wit: more or less four years as Division
Manager Legal affairs Division in PPA-PDO-Southern Mindanao, Davao City,
more or less six(6) years as Public Prosecutor, in Compostela valley Province
and almost two(2) years as presiding Judge in MCTC-Compostela-New Bataan,
Compostela, Comval Province.

It boils down to the same ten(10) year practice. The Constitution and
statutes did not classify what kind of practice of law be it as government or
private practice.

There is no point of comparing the number of years as Lower Court

Judge because it is not the unit of measurement used for the minimum
qualification of a Judge. The applicants may have below five years length of
service as a Judge but may have ten(10) years or more Government or Private
Practice;

8. The SolGen describe the power of appointment as an essentially discretionary power

and must be performed by the officer in which it is vested according to his best lights , the
only condition being that the appointee should possess the qualification
required by law.

20
 The Solgen is correct. It is the president who is the appointing authority.
Why should the JBC limits the discretion of the president by not including the
Petitioner who is the next in rank in the hierarchy of courts, and who meets the
minimum qualification. This is the arguments used by the Solgen when he
applied for the position of Supreme Court Justice.

According to the Solgen , Vargas V. Rilloraza is not applicable.

It is applicable. In Vargas V. Rilloraza it was the congress who adds

another ground for the disqualification of a Justice of the Supreme Court. In
this case it was the JBC who adds another qualification over and above what is
provided by the constitution and congress. Although in the above case it does
not involved Judicial Independence but JBC usurp the function of the congress
and violates the constitution.

9. The SolGen is correct experience is only a consideration or factor in determining

competence, in fact the required minimum experience is ten years practice of law in the
Philippines and it includes experience as a Judge. Therefore petitioner should have been
qualified.

In fact seniority in the Selection of the Chief Justice was not observed at
all times, the appointing authority has all the discretion as long as the appointee
meets the minimum requirement.

10. According to the SolGen, The JBC merely exercised it discretion with the
constitutional requirement and its rule that A Member of the Judiciary must be of proven
competence , integrity, probity and independence.

The SolGen erred. The issue is not INTEGRITY. It is the five year
policy. The JBC was mixed up with Solgen Jaridilizas case.

The Petitioner already meets this requirement when he was appointed as

a Judge in MCTC, The requirement for competence, integrity, probity and
independence of a lower court judge is the same as that of an RTC judge.
There is no more question as to the INTEGRITY as the petitioner hurdle or
passed the same when he was appointed as MCTC Judge.

11. The SolGen belittled, under estimates, mocks and look upon the petitioner to quote:

Surely, at this point, decisions he rendered as MTC Judge

are still under review by the proper appellate courts. In all
probability, not one decision has reach the Supreme Court.

How about those who was appointed to the Judiciary who was never a
Judge and have never rendered a decision? It is an insult to the majority of the
Supreme Court Justices who did not have any experience as a Judge.

The Petitioner could have informed the JBC how he was able to reduce
79% of his docket in one year and eight months service. He was not

21
interviewed how can he defend himself and convince the JBC of his
performance.

12. The SolGen argues that the said Policy is part of an internal guideline or criteria in the
selection and nomination of prospective appointees to the second level courts. Hence, there is
no need to published the same.

The SolGen was unaware that the JBC-Rule-009 internal guideline or

criteria in the selection process was published in the SC website. The assailed
policy is not included in the Published Rules. It is UNWRITTEN. It is not
only a criteria but a DISQUALIFICATION. Internal rules in selection of a
Judge is cloth with public interest thus, publication is required. For now the
petitioner only knows the length of service as a Judge required if you apply for
RTC. How about in CA or Collegiate Courts? How about as member of the
Supreme Court? To whom it is applicable? ONLY to Judges? How many
unwritten rules available for JBC on its CHOOSING to implement or not?

13. According to the SolGen so long as a fair opportunity is available for all applicants
who are evaluated on the basis of their individual merits and abilities, the questioned policy
cannot be struck down as unconstitutional.

THERE WAS NO FAIR OPPORTUNITY. The door was closed

immediately to the petitioner. He was not allowed to participate in the selection
process. He was not interviewed and was not able to take the exams.

14. The respondents argued that the policy is incidental to the constitutional function of JBC
and that the Petitioner is misguided. His stance was brought about by a grave mis-
appreciation of the nature of the authority of the JBC and its particular policy on the
manner of selection prescribed under the constitution.

The Petitioner took exemption.

In exercise of delegated legislative power, involving no discretion as to

what law shall be, but merely authority to fix details in execution or
enforcement of a policy set out in law itself.

Requisites of a valid administrative regulation

a. its promulgation must be authorized by the legislature.

b. it must be promulgated in accordance with the prescribed
procedure.
c. it must be reasonable

The Policy FAILED in all of the three requisites.

The promulgation is not authorized by law and the constitution. It is not

within the scope of the authority given by the constitution for the JBC to add
another qualification applicable to incumbent Judges in the Lower court.

22
 The JBC is not authorize to set two standards. One standard is
applicable to all (the ten Year Practice of Law in the Philippines) and another
standard applicable only to applicants who are incumbent Judges.

The UNWRITTEN POLICY was not publish in violation of Due

Process. It was not implemented uniformly. It is selective.

15. The respondent argues that In particular, the potential nominees must meet the minimum
qualifications provided under the constitution and relevant laws . For Judges of Regional
Trial Courts, the following are the qualifications: xxx A. Filipino Citizenship, b) at least
35 years of age, c) membership in the Philippine Bar, d) of proven competence, integrity,
probity and independence an e) for at least ten years, has been engaged in the practice of law
in the Philippines, or has held public office in the Philippines requiring admission to the
practice of law as an indispensable requisite.

The respondents are correct. It is very explicit in the JBCs enumeration

that what is required is ten(10) years practice of law in the Philippines.
Nowhere in the enumeration is the five years service as a lower court Judge.

The Petitioner meet ALL OF THE ABOVE QUALIFICATION. It is

the same QUALIFICATION that was required of him when he applied and
was appointed as MCTC Judge except that in MCTC the experience required is
only five years practice of law in the Philippines while in RTC Judge position
the required practice of law is ten(10) years.

Under Rule 10 Sec. 1 of the JBC Rules once the applicants meet the
PRIMA FACIE QUALIFICATION the council will prepare the long list and
published in two(2) newspaper of general circulation.

The petitioner despite passing the Prima Facie qualification was not
included in the LONG LIST, in violation of the respondents own Rule.

16. Respondent argues that the JBC also looks at other pertinent factors such as educational
preparation; professional experience; performance; and other accomplishments, including the
completion of the Pre-Judicature program of the Philippines Judicial Academy. In the
exercise of its sound discretion, the JBC may exclude those who possess the
minimum constitutional and statutory requirements and include in the long
list only those whose possible appointment by president will best promote the efficient and
effective administration of Justice.

The above argument is very dangerous. It is tyranny. The president has

nothing to do with the long list what will be submitted to him is the Shortlist.
The JBC cannot exclude applicants who meets the minimum constitutional and
statutory requirement. How will they know that the applicant has no chance, if
they will not allow applicant to be interviewed and take the exams?

In the Civil Service institutionalizing merit and fitness in the government

starts with exerting the best efforts to reach out all qualified candidates for
a particular vacancy and giving them equal opportunities to be
23
objectively assessed on the basis of their qualifications and other
personal attributes. It is then necessary to insulate the objectives of this
Merit Selection Plan from undue exercise of discretion by laying out the
logical sequence of steps to be observed in its implementation,

There are two phases in employment process. The recruitment and

selection process. In recruitment you consider all applicants who meet the
minimum qualification. This qualified applicants will undergo the selection
process through various interviews and tests. In this case the Petitioner was not
even considered as qualified applicant.

17. THE Respondent argues that COMPLETION OF PRE-JUDICATURE

PROGRAM is only an other pertinent factors.

The Law is clear and unambiguous there is no need for construction or

interpretation.

The COMPLETION OF PRE-JUDICATURE PROGRAM is a

statutory minimum qualification it is mandatory as provided in Section 10 R.A.
8557, February 26, 1998 An act establishing the Philippine Judicial Academy,
defining its powers and functions, appropriating funds therefor, and for other
purposes to wit:

As soon as PHILJA shall have been fully organized with the composition of its
Corps of Professorial Lecturers and other personnel, only participants who have
completed the programs prescribed by the Academy and have
satisfactorily complied with all the requirements incident thereto may
be appointed or promoted to any position or vacancy in the Judiciary.

The actual practice is reverse or opposite of what is required by law.

APPOINT FIRST and conduct POST- JUDICATURE PROGRAM no more
exam. The law became useless.

18. It is argued by the Respondents that In sum the adoption of the policy (petitioners so-
called 5-year requirement) applied by the JBC to petitioners case is necessary and incidental
to the function conferred by the constitution on the JBC. Rather than unduly enlarge the
constitutional and statutory requirements for Judges of lower courts, it simplifies or
operationalizes them, xxx

The Policy does not merely simplifies it DISQUALIFIES.

The adoption of the so called 5-year requirement is clearly expanding or

adding to the minimum qualification imposed by the constitution and statutes
because it disqualify an applicant to be included in the selection process.

If the JBC wants to simplify the selection process they should

implement PD 807 next in rank rule Lower Court Judges are the next in rank

24
and should be the first to be recommended for promotion to RTC Judge.

The five year length of service as judge in lower court policy is not
NECESSARY AND INCIDENTAL to JBC constitutional function. The
arguments of JBC and the Solicitor General is OFF TANGENT. The JBCs
constitutional function under Sec. 8, Article VIII does not authorized JBC to
prescribed the qualification of a judge. On the other hand Section 7 article VIII
of the constitution explicitly provides that only Congress may prescribed
additional qualification for a Judge.

19. The respondents already Discuss and argues recommendations or short list and Vested
right to the position.

The said argument is not responsive. The controversy is at the PRE-

NOMINATION STAGE, PRIOR TO THE INTERVIEW.

The QUESTION that should be ANSWERED in this case is WHO

SHOULD BE CONSIDERED A QUALIFIED APPLICANT IN ORDER
TO GO THROUGH THE PROCESS OF SELECTION? The answer lies in
the constitution and statutes. The JBC has no discretion to amend or expand
what was prescribed by the constitution and statutes.

Simply put JBC should not have prescribed policy on the qualification of
the applicants.

The respondent JBC is correct nobody has a vested title to the vacant
position. So everybody who meets the minimum qualification should have been
considered and go through the selection process.

20. The respondents argues also that Contrary to what petitioner believes, applicants who
have been in the practice of law for at least ten(10) year are not automatically included in the
long list of candidates for vacant positions in the Regional trail Courts especially if they come
from the private sector.

IT HAS A CHILLING EFFECT TO PRIVATE PRACTITIONER.

This is worst than the assailed policy, because at least the Lower Court Judge
knows why he / she was disqualified. In the case of private practitioner who
meets the minimum qualification he/ she maybe disqualified in whatever
grounds the respondent may think. This is clearly WHIMSICAL,
ARBITRARY AND GRAVE ABUSE OF POWER AND DISCRITION. To
rule otherwise would be to sanction absurdity and injustice.

21. The JBC alleged to have consistently applied the classification created under the challenged
policy to similar instances in the past and will consistently apply the challenged policy to
similar instances in the future. That is precisely the reason why the policy has been long
standing. If there have been exceptions, then those pertain to exceptional ones, similar to the
instances allowed under Rule 9 of the rules of the JBC.

What are those exceptional circumstance? The challenged policy was not
25
even mentioned in JBC Rule 009. What exemption is the JBC talking about?

The JBC is MISINFORMED OR FAILED TO ASCERTAIN THE

TRUTH of their allegation that said policy was uniformly implemented.

The Profile of the Supreme Court Justices will prove otherwise. The SC
should look into the Profile of the RTC Judges, the petitioner knows some
who did not meet the qualification set by the assailed Policy. Some of
appointed RTC judges who did not meet the five(5) requirement were his
classmate during the orientation seminar. The petitioner pray that this court
(SC) will order the SC administrator to submit the list of RTC Judges who did
not comply with the assailed policy of 5 yr. service in the lower court.

22. Respondents argues. Appointment to Judicial Office is a privilege and not a judicially
enforceable right. Xxx that there is no law, however, that grants him the right to a promotion
to second level courts.

Again, the petitioner is not asking for immediate promotion to the

second level courts all he wanted is to allow him to go through the process of
selection and be included in the list of applicants to be interviewed, to
undergo written, psychological examination , etc. The remedies prayed by the
plaintiff does not include automatic appointment to the RTC Judge Position.
The least is to be included in the LONGLIST and the most is to be included in
the SHORTLIST. The petitioner should be the first to be recommended
considering the he is NEXT IN RANK and that he passed and completed the
pre-judicature program as required by LAW.

The SolGen Francis Jardeleza has its doze of his own medicine but he
prevailed, the petitioner hope to duplicate the same. As the supreme court said
After all in long line of decision by this court it is the appointing authority who
has the discretion to appoint anybody as long as the appointee meets the
minimum qualification. Why deprived the appointing authority to make his
choice from among qualified applicants.

23. The respondents argues that Ones inclusion in the list of candidates is subject to the
discretion of the JBC over the selection of nominees for a particular judicial post.

It should be clarified the petitioner was not included in the list of

qualified applicants (LONG LIST) not a list of recommended applicants
(SHORT LIST) OR CANDIDATES. The former refers to candidate for
interview by the JBC and later refers to candidates who passed the selection
process to be recommended to the president.

The JBC has no DISCRETION to reject IMMEDIATELY any

applicant who meets the minimum requirements, they should interview them
and allowed them to take the examination. THE QUALIFICATION WAS
ALREADY SET BY THE CONSTITUTION AND STATUTES. The JBC
should also observed the law on next in rank.

26
Mandatory Injunction

The constitutional and statutory requirement of ten years practice of law

is complied by the petitioner and it includes his experience as a government
lawyer in PPA, A prosecutor in Compostela Valley and a Judge in MCTC-
Compostel-New Bataan, Comval.

Based on the six (6) qualification prescribed by the constitution and

congress the petitioner is qualified:

1. He is a citizen and member of the Philippine Bar;

2. He is a person of proven competence, integrity, probity, and independence this are
the same requirement when he was appointed as MCTC Judge;
3. He is a natural-born citizen of the Philippines;
4. He is more than 35 years of age. He is Fifty three (54) years old;
5. He was admitted in the Bar on March 20, 2003 and is now more than ten(10) years
engaged in the practice of law in the Philippines, He was employed in Philippine
ports Authority as manager Legal Affairs Division (12/23/2003 to 1/11/2007) ;
Associate Pros. Atty. 1/12/2007 to 7/01/2008); Prosecutor I (7/02/2008 to
12/02/2013) ; MCTC Judge (12/03/2013 to present);
6. He completed the pre-judicature program and was informed by Philja Staff that he
top the Pre- judicature exam for batch 24th program . His rating in the said exam
is 85.4 percent;
7. He is the next in rank being a Judge in the Lower Court,(PD 807 rule on next in
rank) his appointment is regular and permanent, not probationary thus he could
be appointed to higher court immediately upon completion of the statutory
requirement of 10 year practice.

WHEREFORE, it is respectfully prayed of this Honorable Court to

exercise its power to:

1. Grant the Petition. Pending resolution of this Petition, a

temporary Restraining order, and/ or a writ of preliminary injunction be
issued compelling Public Respondents to refrain from disqualifying the
Petitioner and all other Judges similarly situated with the petitioner in
their present or future application for second level courts (RTC Judges)
and to include the petitioner as applicants in the above mentioned RTCs
and go through the process of selection and evaluation;

2. After due proceedings:

Declare the unconstitutionality of the Policy requiring five (5) years

experience as LOWER COURT Judge and those that are not prescribed in the
constitution and the statutes (THE SO CALLED UNWRITTEN RULES).

3. To order the JBC to implement the R.A. 8557 that only

participants who have completed the programs prescribed by the
Academy and have satisfactorily complied with all the requirements
incident thereto may be appointed or promoted to any position or
vacancy in the Judiciary.

4. Considering that the Petitioner is a next in rank who

27
 passed/ completed the pre-judicature program and was evaluated and
was recommended by JBC when he applied for the MCTC Judge, It is
further prayed that the Supreme Court may order that the Petitioner be
deemed included in the short list to be recommended to the president.

5. To furnished the Office of the President the order to

implement R.A. 8557, for the president to appoint nominees who
completed and passed the pre-judicature exam.

Other reliefs and remedies which are just and equitable under the
premises is likewise prayed.

Respectfully submitted.

IN WITNESS HEREOF, I hereunto set my hand signature this October

12, 2014 , at Nabunturan, Compostela Valley Province, Philippines.

SGD. JUDGE FERDINAND R. VILLANUEVA

Petitioner
Roll Number 47802
Copy furnished:

The Judicial and Bar Council,

Centinial, Bldg., Supreme Court
Padre Faura St., Manila

The Solicitor General

Office of the Solicitor General
134 Amorsolo St., Legaspi Village
Makati Manila

EXPLANATION

A copy hereof is served to this court and respondents on via registered

mail due to lack of time and field personnel, due to the urgency of filing the
same with this Honorable Office, and the distance of the office of the
respondents and the Petitioner..

SGD. FERDINAND R. VILLANUEVA

Petitioner

28
Republic of the Philippines )
Province of Compostela Valley ) S.S.
x----------------------------------------x

VERIFIED DECLARATION

I FERDINAND R. VILLANUEVA, hereby declare that the documents

and annexes thereof hereto submitted, electronically (CD) in accordance with
the efficient use of paper Rule are complete and true copies of the documents
(annexes) filed with the Supreme Court.

SGD FERDINAND R. VILLANUEVA

Petitioner/ Declarant

SUBSCRIBED AND SWORN to before me, this 13th day of October

2014, at Nabunturan, Compostela Valley Province, affiant exhibited to me his
SC ID0120754 issued by the Supreme Court of the Philippines..

SGD ROLANDO L. ESTREMOS II

OIC-Provincial Prosecutor
Compostela Valley Province

29