DE CASTRO VS.
JBC Prohibition under Section 15, Article VII does not apply to
MARCH 28, 2013 ~ VBDIAZ
ARTURO M. DE CASTRO vs. JUDICIAL AND BAR COUNCIL
(JBC) and PRESIDENT GLORIA MACAPAGAL – ARROYO
G.R. No. 191002, March 17, 2010
FACTS: The compulsory retirement of Chief Justice Reynato S.
Puno by May 17, 2010 occurs just days after the coming
presidential elections on May 10, 2010.
These cases trace their genesis to the controversy that has arisen
from the forthcoming compulsory retirement of Chief Justice Puno
on May 17, 2010, or seven days after the presidential election.
Under Section 4(1), in relation to Section 9, Article VIII, that
“vacancy shall be filled within ninety days from the occurrence
thereof” from a “list of at least three nominees prepared by the
Judicial and Bar Council for every vacancy.” Also considering that
Section 15, Article VII (Executive Department) of the Constitution
prohibits the President or Acting President from making
appointments within two months immediately before the next
presidential elections and up to the end of his term, except
temporary appointments to executive positions when continued
vacancies therein will prejudice public service or endanger public
safety.
The JBC, in its en banc meeting of January 18, 2010, unanimously
agreed to start the process of filling up the position of Chief Justice.
Conformably with its existing practice, the JBC “automatically
considered” for the position of Chief Justice the five most senior of
the Associate Justices of the Court, namely: Associate Justice
Antonio T. Carpio; Associate Justice Renato C. Corona; Associate
Justice Conchita Carpio Morales; Associate Justice Presbitero J.
Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura.
However, the last two declined their nomination through letters
dated January 18, 2010 and January 25, 2010, respectively.
The OSG contends that the incumbent President may appoint the
next Chief Justice, because the prohibition under Section 15,
Article VII of the Constitution does not apply to appointments in the
Supreme Court. It argues that any vacancy in the Supreme Court
must be filled within 90 days from its occurrence, pursuant to
Section 4(1), Article VIII of the Constitution; that had the framers
intended the prohibition to apply to Supreme Court appointments,
they could have easily expressly stated so in the Constitution,
which explains why the prohibition found in Article VII (Executive
Department) was not written in Article VIII (Judicial Department);
and that the framers also incorporated in Article VIII ample
restrictions or limitations on the President’s power to appoint
members of the Supreme Court to ensure its independence from
“political vicissitudes” and its “insulation from political pressures,”
such as stringent qualifications for the positions, the establishment
of the JBC, the specified period within which the President shall
appoint a Supreme Court Justice.
A part of the question to be reviewed by the Court is whether the
JBC properly initiated the process, there being an insistence from
some of the oppositors-intervenors that the JBC could only do so
once the vacancy has occurred (that is, after May 17, 2010).
Another part is, of course, whether the JBC may resume its process
until the short list is prepared, in view of the provision of Section
4(1), Article VIII, which unqualifiedly requires the President to
appoint one from the short list to fill the vacancy in the Supreme
Court (be it the Chief Justice or an Associate Justice) within 90
days from the occurrence of the vacancy.
ISSUE: Whether the incumbent President can appoint the
successor of Chief Justice Puno upon his retirement.
HELD:
appointments to fill a vacancy in the Supreme Court or to other
appointments to the Judiciary.
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department), provides:
Section 15. Two months immediately before the next presidential
elections and up to the end of his term, a President or Acting
President shall not make appointments, except temporary
appointments to executive positions when continued vacancies
therein will prejudice public service or endanger public safety.
The other, Section 4 (1), Article VIII (Judicial Department), states:
Section 4. (1). The Supreme Court shall be composed of a Chief
Justice and fourteen Associate Justices. It may sit en banc or in its
discretion, in division of three, five, or seven Members. Any
vacancy shall be filled within ninety days from the occurrence
thereof.
Had the framers intended to extend the prohibition contained in
Section 15, Article VII to the appointment of Members of the
Supreme Court, they could have explicitly done so. They could not
have ignored the meticulous ordering of the provisions. They would
have easily and surely written the prohibition made explicit in
Section 15, Article VII as being equally applicable to the
appointment of Members of the Supreme Court in Article VIII itself,
most likely in Section 4 (1), Article VIII. That such specification was
not done only reveals that the prohibition against the President or
Acting President making appointments within two months before
the next presidential elections and up to the end of the President’s
or Acting President’s term does not refer to the Members of the
Supreme Court.
Had the framers intended to extend the prohibition contained in
Section 15, Article VII to the appointment of Members of the
Supreme Court, they could have explicitly done so. They could not
have ignored the meticulous ordering of the provisions. They would
have easily and surely written the prohibition made explicit in
Section 15, Article VII as being equally applicable to the
appointment of Members of the Supreme Court in Article VIII itself,
most likely in Section 4 (1), Article VIII. That such specification was
not done only reveals that the prohibition against the President or
Acting President making appointments within two months before
the next presidential elections and up to the end of the President’s
or Acting President’s term does not refer to the Members of the
Supreme Court.
Section 14, Section 15, and Section 16 are obviously of the same
character, in that they affect the power of the President to appoint.
The fact that Section 14 and Section 16 refer only to appointments
within the Executive Department renders conclusive that Section
15 also applies only to the Executive Department. This conclusion
is consistent with the rule that every part of the statute must be
interpreted with reference to the context, i.e. that every part must
be considered together with the other parts, and kept subservient
to the general intent of the whole enactment. It is absurd to assume
that the framers deliberately situated Section 15 between Section
14 and Section 16, if they intended Section 15 to cover all kinds of
presidential appointments. If that was their intention in respect of
appointments to the Judiciary, the framers, if only to be clear, would
have easily and surely inserted a similar prohibition in Article VIII,
most likely within Section 4 (1) thereof.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 191002 March 17, 2010
ARTURO M. DE CASTRO, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT
GLORIA MACAPAGAL - ARROYO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191032
JAIME N. SORIANO, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191057
PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
A.M. No. 10-2-5-SC
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE
CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY,
ESTELITO P. MENDOZA, Petitioner,
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191149
JOHN G. PERALTA, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM;
ALFONSO V. TAN, JR.; NATIONAL UNION OF PEOPLE'S
LAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF THE
PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its
Immediate Past President, ATTY. ISRAELITO P. TORREON,
and the latter in his own personal capacity as a MEMBER of
the PHILIPPINE BAR; MITCHELL JOHN L. BOISER; BAGONG
ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P.
ARAULLO; BAYAN SECRETARY GENERAL RENATO M.
REYES, JR.; CONFEDERATION FOR UNITY, RECOGNITION
AND ADVANCE-MENT OF GOVERNMENT EMPLOYEES
(COURAGE) CHAIRMAN FERDINAND GAITE; KALIPUNAN
NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY
GENERAL GLORIA ARELLANO; ALYANSA NG
NAGKAKAISANG KABATAAN NG SAMBAYANAN PARA SA
KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN LEONARD
RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS;
LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES
MARK TERRY LACUANAN RIDON; NATIONAL UNION OF
STUDENTS OF THE PHILIPPINES (NUSP) CHAIRMAN
EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE
PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and
STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES
(SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA;
WALDEN F. BELLO and LORETTA ANN P. ROSALES;
WOMEN TRIAL LAWYERS ORGANIZATION OF THE
PHILIPPINES, represented by YOLANDA QUISUMBING-
JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA
GANDIONCO-OLEDAN; MA. VERENA KASILAG-
VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE
JESUS; and GUINEVERE DE LEON. Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191342
ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern
Luzon), and ATTY. ROLAND B. INTING (IBPGovernor-Eastern
Visayas), Petitioners,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191420
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY
GLORIA MACAPAGAL-ARROYO, Respondents.
DECISION
BERSAMIN, J.:
The compulsory retirement of Chief Justice Reynato S. Puno by
May 17, 2010 occurs just days after the coming presidential
elections on May 10, 2010. Even before the event actually
happens, it is giving rise to many legal dilemmas. May the
incumbent President appoint his successor, considering that
Section 15, Article VII (Executive Department) of the Constitution
prohibits the President or Acting President from making
appointments within two months immediately before the next
presidential elections and up to the end of his term, except
temporary appointments to executive positions when continued
vacancies therein will prejudice public service or endanger public
safety? What is the relevance of Section 4 (1), Article VIII (Judicial
Department) of the Constitution, which provides that any vacancy
in the Supreme Court shall be filled within 90 days from the
occurrence thereof, to the matter of the appointment of his
successor? May the Judicial and Bar Council (JBC) resume the
process of screening the candidates nominated or being
considered to succeed Chief Justice Puno, and submit the list of
nominees to the incumbent President even during the period of the
prohibition under Section 15, Article VII? Does mandamus lie to
compel the submission of the shortlist of nominees by the JBC?
Precís of the Consolidated Cases
Petitioners Arturo M. De Castro and John G. Peralta respectively
commenced G.R. No. 1910021 and G.R. No. 1911492 as special
civil actions for certiorari and mandamus, praying that the JBC be
compelled to submit to the incumbent President the list of at least
three nominees for the position of the next Chief Justice.
In G.R. No. 191032,3 Jaime N. Soriano, via his petition for
prohibition, proposes to prevent the JBC from conducting its
search, selection and nomination proceedings for the position of
Chief Justice.
In G.R. No. 191057, a special civil action for mandamus,4 the
Philippine Constitution Association (PHILCONSA) wants the JBC
to submit its list of nominees for the position of Chief Justice to be
vacated by Chief Justice Puno upon his retirement on May 17,
2010, because the incumbent President is not covered by the
prohibition that applies only to appointments in the Executive
Department.
In Administrative Matter No. 10-2-5-SC,5 petitioner Estelito M.
Mendoza, a former Solicitor General, seeks a ruling from the Court
for the guidance of the JBC on whether Section 15, Article VII
applies to appointments to the Judiciary.
In G.R. No. 191342,6 which the Court consolidated on March 9,
2010 with the petitions earlier filed, petitioners Amador Z.
Tolentino, Jr. and Roland B. Inting, Integrated Bar of the Philippines
(IBP) Governors for Southern Luzon and Eastern Visayas,
respectively, want to enjoin and restrain the JBC from submitting a
list of nominees for the position of Chief Justice to the President for
appointment during the period provided for in Section 15, Article
VII.
All the petitions now before the Court pose as the principal legal
question whether the incumbent President can appoint the
successor of Chief Justice Puno upon his retirement. That question
is undoubtedly impressed with transcendental importance to the
Nation, because the appointment of the Chief Justice is any
President’s most important appointment.
A precedent frequently cited is In Re Appointments Dated March
30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta
as Judges of the Regional Trial Court of Branch 62, Bago City and
of Branch 24, Cabanatuan City, respectively (Valenzuela), 7 by
which the Court held that Section 15, Article VII prohibited the
exercise by the President of the power to appoint to judicial
positions during the period therein fixed.
In G.R. No. 191002, De Castro submits that the conflicting opinions
on the issue expressed by legal luminaries – one side holds that
the incumbent President is prohibited from making appointments
within two months immediately before the coming presidential
elections and until the end of her term of office as President on
June 30, 2010, while the other insists that the prohibition applies
only to appointments to executive positions that may influence the
election and, anyway, paramount national interest justifies the
appointment of a Chief Justice during the election ban – has
impelled the JBC to defer the decision to whom to send its list of at
least three nominees, whether to the incumbent President or to her
successor.8 He opines that the JBC is thereby arrogating unto itself
"the judicial function that is not conferred upon it by the
Constitution," which has limited it to the task of recommending
appointees to the Judiciary, but has not empowered it to "finally
resolve constitutional questions, which is the power vested only in
the Supreme Court under the Constitution." As such, he contends
that the JBC acted with grave abuse of discretion in deferring the
submission of the list of nominees to the President; and that a "final
and definitive resolution of the constitutional questions raised
above would diffuse (sic) the tension in the legal community that
would go a long way to keep and maintain stability in the judiciary
and the political system."9
In G.R. No. 191032, Soriano offers the view that the JBC
committed a grave abuse of discretion amounting to lack or excess
of its jurisdiction when it resolved unanimously on January 18, 2010
to open the search, nomination, and selection process for the
position of Chief Justice to succeed Chief Justice Puno, because
the appointing authority for the position of Chief Justice is the
Supreme Court itself, the President’s authority being limited to the
appointment of the Members of the Supreme Court. Hence, the
JBC should not intervene in the process, unless a nominee is not
yet a Member of the Supreme Court.10
For its part, PHILCONSA observes in its petition in G.R. No.
191057 that "unorthodox and exceptional circumstances spawned
by the discordant interpretations, due perhaps to a perfunctory
understanding, of Sec. 15, Art. VII in relation to Secs. 4(1), 8(5) and
9, Art. VIII of the Constitution" have bred "a frenzied inflammatory
legal debate on the constitutional provisions mentioned that has
divided the bench and the bar and the general public as well,
because of its dimensional impact to the nation and the people,"
thereby fashioning "transcendental questions or issues affecting
the JBC’s proper exercise of its "principal function of
recommending appointees to the Judiciary" by submitting only to
the President (not to the next President) "a list of at least three
nominees prepared by the Judicial and Bar Council for every
vacancy" from which the members of the Supreme Court and
judges of the lower courts may be appointed." 11 PHILCONSA
further believes and submits that now is the time to revisit and
review Valenzuela, the "strange and exotic Decision of the Court
en banc."12
Peralta states in his petition in G.R. No. 191149 that mandamus
can compel the JBC "to immediately transmit to the President,
within a reasonable time, its nomination list for the position of chief
justice upon the mandatory retirement of Chief Justice Reynato S.
Puno, in compliance with its mandated duty under the Constitution"
in the event that the Court resolves that the President can appoint
a Chief Justice even during the election ban under Section 15,
Article VII of the Constitution.13
The petitioners in G.R. No. 191342 insist that there is an actual
controversy, considering that the "JBC has initiated the process of
receiving applications for the position of Chief Justice and has in
fact begun the evaluation process for the applications to the
position," and "is perilously near completing the nomination
process and coming up with a list of nominees for submission to
the President, entering into the period of the ban on midnight
appointments on March 10, 2010," which "only highlights the
pressing and compelling need for a writ of prohibition to enjoin such
alleged ministerial function of submitting the list, especially if it will
be cone within the period of the ban on midnight appointments."14
Antecedents
These cases trace their genesis to the controversy that has arisen
from the forthcoming compulsory retirement of Chief Justice Puno
on May 17, 2010, or seven days after the presidential election.
Under Section 4(1), in relation to Section 9, Article VIII, that
"vacancy shall be filled within ninety days from the occurrence
thereof" from a "list of at least three nominees prepared by the
Judicial and Bar Council for every vacancy."
On December 22, 2009, Congressman Matias V. Defensor, an ex
officio member of the JBC, addressed a letter to the JBC,
requesting that the process for nominations to the office of the
Chief Justice be commenced immediately.
In its January 18, 2010 meeting en banc, therefore, the JBC passed
a resolution,15 which reads:
The JBC, in its en banc meeting of January 18, 2010, unanimously
agreed to start the process of filling up the position of Chief Justice
to be vacated on May 17, 2010 upon the retirement of the
incumbent Chief Justice Honorable Reynato S. Puno.
It will publish the opening of the position for applications or
recommendations; deliberate on the list of candidates; publish the
names of candidates; accept comments on or opposition to the
applications; conduct public interviews of candidates; and prepare
the shortlist of candidates.
As to the time to submit this shortlist to the proper appointing
authority, in the light of the Constitution, existing laws and
jurisprudence, the JBC welcomes and will consider all views on the
matter.
18 January 2010.
(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council
As a result, the JBC opened the position of Chief Justice for
application or recommendation, and published for that purpose its
announcement dated January 20, 2010,16 viz:
The Judicial and Bar Council (JBC) announces the opening for
application or recommendation, of the position of CHIEF JUSTICE
OF THE SUPREME COURT, which will be vacated on 17 May
2010 upon the retirement of the incumbent Chief Justice, HON.
REYNATO S. PUNO.
Applications or recommendations for this position must be
submitted not later than 4 February 2010 (Thursday) to the JBC
Secretariat xxx:
The announcement was published on January 20, 2010 in the
Philippine Daily Inquirer and The Philippine Star. 17
Conformably with its existing practice, the JBC "automatically
considered" for the position of Chief Justice the five most senior of
the Associate Justices of the Court, namely: Associate Justice
Antonio T. Carpio; Associate Justice Renato C. Corona; Associate
Justice Conchita Carpio Morales; Associate Justice Presbitero J.
Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura.
However, the last two declined their nomination through letters
dated January 18, 2010 and January 25, 2010, respectively. 18
Others either applied or were nominated. Victor Fernandez, the
retired Deputy Ombudsman for Luzon, applied, but later formally
withdrew his name from consideration through his letter dated
February 8, 2010. Candidates who accepted their nominations
without conditions were Associate Justice Renato C. Corona;
Associate Justice Teresita J. Leonardo-De Castro; Associate
Justice Arturo D. Brion; and Associate Justice Edilberto G.
Sandoval (Sandiganbayan). Candidates who accepted their
nominations with conditions were Associate Justice Antonio T.
Carpio and Associate Justice Conchita Carpio Morales.19 Declining
their nominations were Atty. Henry Villarica (via telephone
conversation with the Executive Officer of the JBC on February 5,
2010) and Atty. Gregorio M. Batiller, Jr. (via telephone conversation
with the Executive Officer of the JBC on February 8, 2010). 20
The JBC excluded from consideration former RTC Judge
Florentino Floro (for failure to meet the standards set by the JBC
rules); and Special Prosecutor Dennis Villa-Ignacio of the Office of
the Ombudsman (due to cases pending in the Office of the
Ombudsman).21
In its meeting of February 8, 2010, the JBC resolved to proceed to
the next step of announcing the names of the following candidates
to invite the public to file their sworn complaint, written report, or
opposition, if any, not later than February 22, 2010, to wit:
Associate Justice Carpio, Associate Justice Corona, Associate
Justice Carpio Morales, Associate Justice Leonardo-De Castro,
Associate Justice Brion, and Associate Justice Sandoval. The
announcement came out in the Philippine Daily Inquirer and The
Philippine Star issues of February 13, 2010.22
Issues
Although it has already begun the process for the filling of the
position of Chief Justice Puno in accordance with its rules, the JBC
is not yet decided on when to submit to the President its list of
nominees for the position due to the controversy now before us
being yet unresolved. In the meanwhile, time is marching in quick
step towards May 17, 2010 when the vacancy occurs upon the
retirement of Chief Justice Puno.
The actions of the JBC have sparked a vigorous debate not only
among legal luminaries, but also among non-legal quarters, and
brought out highly disparate opinions on whether the incumbent
President can appoint the next Chief Justice or not. Petitioner
Mendoza notes that in Valenzuela, which involved the
appointments of two judges of the Regional Trial Court, the Court
addressed this issue now before us as an administrative matter "to
avoid any possible polemics concerning the matter," but he opines
that the polemics leading to Valenzuela "would be miniscule [sic]
compared to the "polemics" that have now erupted in regard to the
current controversy," and that unless "put to a halt, and this may
only be achieved by a ruling from the Court, the integrity of the
process and the credibility of whoever is appointed to the position
of Chief Justice, may irreparably be impaired."23
Accordingly, we reframe the issues as submitted by each
petitioner in the order of the chronological filing of their petitions.
G.R. No. 191002
a. Does the JBC have the power and authority to resolve
the constitutional question of whether the incumbent
President can appoint a Chief Justice during the election
ban period?
b. Does the incumbent President have the power and
authority to appoint during the election ban the successor
of Chief Justice Puno when he vacates the position of
Chief Justice on his retirement on May 17, 2010?
G.R. No. 191032
a. Is the power to appoint the Chief Justice vested in the
Supreme Court en banc?
G.R. No. 191057
a. Is the constitutional prohibition against appointment
under Section 15, Article VII of the Constitution applicable
only to positions in the Executive Department?
b. Assuming that the prohibition under Section 15, Article
VII of the Constitution also applies to members of the
Judiciary, may such appointments be excepted because
they are impressed with public interest or are demanded
by the exigencies of public service, thereby justifying
these appointments during the period of prohibition?
c. Does the JBC have the authority to decide whether or
not to include and submit the names of nominees who
manifested interest to be nominated for the position of
Chief Justice on the understanding that his/her
nomination will be submitted to the next President in view
of the prohibition against presidential appointments from
March 11, 2010 until June 30, 2010?
A. M. No. 10-2-5-SC
 a. Does Section 15, Article VII of the Constitution apply to
appointments to positions in the Judiciary under Section
9, Article VIII of the Constitution?
b. May President Gloria Macapagal-Arroyo make
appointments to the Judiciary after March 10, 2010,
including that for the position of Chief Justice after Chief
Justice Puno retires on May 17, 2010?
G.R. No. 191149
a. Does the JBC have the discretion to withhold the
submission of the short list to President Gloria
Macapagal-Arroyo?
G.R. No. 191342
a. Does the JBC have the authority to submit the list of
nominees to the incumbent President without committing
a grave violation of the Constitution and jurisprudence
prohibiting the incumbent President from making midnight
appointments two months immediately preceding the next
presidential elections until the end of her term?
b. Is any act performed by the JBC, including the vetting
of the candidates for the position of Chief Justice,
constitutionally invalid in view of the JBC's illegal
composition allowing each member from the Senate and
the House of Representatives to have one vote each?
On February 16, 2010, the Court directed the JBC and the Office
of the Solicitor General (OSG) to comment on the consolidated
petitions, except that filed in G.R. No. 191342.
On February 26, 2010, the JBC submitted its comment, reporting
therein that the next stage of the process for the selection of the
nominees for the position of Chief Justice would be the public
interview of the candidates and the preparation of the short list of
candidates, "including the interview of the constitutional experts, as
may be needed."24 It stated:25
Likewise, the JBC has yet to take a position on when to submit the
shortlist to the proper appointing authority, in light of Section 4 (1),
Article VIII of the Constitution, which provides that vacancy in the
Supreme Court shall be filled within ninety (90) days from the
occurrence thereof, Section 15, Article VII of the Constitution
concerning the ban on Presidential appointments "two (2) months
immediately before the next presidential elections and up to the
end of his term" and Section 261 (g), Article XXII of the Omnibus
Election Code of the Philippines.
12. Since the Honorable Supreme Court is the final interpreter of
the Constitution, the JBC will be guided by its decision in these
consolidated Petitions and Administrative Matter.
On February 26, 2010, the OSG also submitted its comment,
essentially stating that the incumbent President can appoint the
successor of Chief Justice Puno upon his retirement by May 17,
2010.
The OSG insists that: (a) a writ of prohibition cannot issue to
prevent the JBC from performing its principal function under the
Constitution to recommend appointees in the Judiciary; (b) the
JBC's function to recommend is a "continuing process," which does
not begin with each vacancy or end with each nomination, because
the goal is "to submit the list of nominees to Malacañang on the
very day the vacancy arises";26 the JBC was thus acting within its
jurisdiction when it commenced and set in motion the process of
selecting the nominees to be submitted to the President for the
position of Chief Justice to be vacated by Chief Justice Puno;27 (c)
petitioner Soriano's theory that it is the Supreme Court, not the
President, who has the power to appoint the Chief Justice, is
incorrect, and proceeds from his misinterpretation of the phrase
"members of the Supreme Court" found in Section 9, Article VIII of
the Constitution as referring only to the Associate Justices, to the
exclusion of the Chief Justice; 28 (d) a writ of mandamus can issue
to compel the JBC to submit the list of nominees to the President,
considering that its duty to prepare the list of at least three
nominees is unqualified, and the submission of the list is a
ministerial act that the JBC is mandated to perform under the
Constitution; as such, the JBC, the nature of whose principal
function is executive, is not vested with the power to resolve who
has the authority to appoint the next Chief Justice and, therefore,
has no discretion to withhold the list from the President; 29 and (e)
a writ of mandamus cannot issue to compel the JBC to include or
exclude particular candidates as nominees, considering that there
is no imperative duty on its part to include in or exclude from the
list particular individuals, but, on the contrary, the JBC's
determination of who it nominates to the President is an exercise
of a discretionary duty.30
The OSG contends that the incumbent President may appoint the
next Chief Justice, because the prohibition under Section 15,
Article VII of the Constitution does not apply to appointments in the
Supreme Court. It argues that any vacancy in the Supreme Court
must be filled within 90 days from its occurrence, pursuant to
Section 4(1), Article VIII of the Constitution; 31 that in their
deliberations on the mandatory period for the appointment of
Supreme Court Justices, the framers neither mentioned nor
referred to the ban against midnight appointments, or its effects on
such period, or vice versa;32 that had the framers intended the
prohibition to apply to Supreme Court appointments, they could
have easily expressly stated so in the Constitution, which explains
why the prohibition found in Article VII (Executive Department) was
not written in Article VIII (Judicial Department); and that the framers
also incorporated in Article VIII ample restrictions or limitations on
the President's power to appoint members of the Supreme Court
to ensure its independence from "political vicissitudes" and its
"insulation from political pressures,"33 such as stringent
qualifications for the positions, the establishment of the JBC, the
specified period within which the President shall appoint a
Supreme Court Justice.
The OSG posits that although Valenzuela involved the appointment
of RTC Judges, the situation now refers to the appointment of the
next Chief Justice to which the prohibition does not apply; that, at
any rate, Valenzuela even recognized that there might be "the
imperative need for an appointment during the period of the ban,"
like when the membership of the Supreme Court should be "so
reduced that it will have no quorum, or should the voting on a
particular important question requiring expeditious resolution be
divided";34 and that Valenzuela also recognized that the filling of
vacancies in the Judiciary is undoubtedly in the public interest,
most especially if there is any compelling reason to justify the
making of the appointments during the period of the prohibition. 35
Lastly, the OSG urges that there are now undeniably compelling
reasons for the incumbent President to appoint the next Chief
Justice, to wit: (a) a deluge of cases involving sensitive political
issues is "quite expected";36 (b) the Court acts as the Presidential
Electoral Tribunal (PET), which, sitting en banc, is the sole judge
of all contests relating to the election, returns, and qualifications of
the President and Vice President and, as such, has "the power to
correct manifest errors on the statement of votes (SOV) and
certificates of canvass (COC)";37 (c) if history has shown that
during ordinary times the Chief Justice was appointed immediately
upon the occurrence of the vacancy, from the time of the effectivity
of the Constitution, there is now even more reason to appoint the
next Chief Justice immediately upon the retirement of Chief Justice
Puno;38 and (d) should the next Chief Justice come from among
the incumbent Associate Justices of the Supreme Court, thereby
causing a vacancy, it also becomes incumbent upon the JBC to
start the selection process for the filling up of the vacancy in
accordance with the constitutional mandate.39
On March 9, 2010, the Court admitted the following
comments/oppositions-in-intervention, to wit:
(a) The opposition-in-intervention dated February 22,
2010 of Atty. Peter Irving Corvera (Corvera);40
(b) The opposition-in-intervention dated February 22,
2010 of Atty. Christian Robert S. Lim (Lim);
(c) The opposition-in-intervention dated February 23,
2010 of Atty. Alfonso V. Tan, Jr. (Tan);
(d) The comment/opposition-in-intervention dated March
1, 2010 of the National Union of People's Lawyers
(NUPL);
(e) The opposition-in-intervention dated February 25,
2010 of Atty. Marlou B. Ubano (Ubano);
(f) The opposition-in-intervention dated February 25, 2010
of Integrated Bar of the Philippines-Davao del Sur
Chapter and its Immediate Past President, Atty. Israelito
P. Torreon (IBP- Davao del Sur);
(g) The opposition-in-intervention dated February 26,
2010 of Atty. Mitchell John L. Boiser (Boiser);
(h)The consolidated comment/opposition-in-intervention
dated February 26, 2010 of BAYAN Chairman Dr.
Carolina P. Araullo; BAYAN Secretary General Renato M.
Reyes, Jr.; Confederation for Unity, Recognition and
Advancement of Government Employees (COURAGE)
Chairman Ferdinand Gaite; Kalipunan ng Damayang
Mahihirap (KADAMAY) Secretary General Gloria
Arellano; Alyansa ng Nagkakaisang Kabataan ng
Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman
Ken Leonard Ramos; Tayo ang Pag-asa Convenor Alvin
Peters; League of Filipino Students (LFS) Chairman
James Mark Terry Lacuanan Ridon; National Union of
Students of the Philippines (NUSP) Chairman Einstein
Recedes, College Editors Guild of the Philippines (CEGP)
Chairman Vijae Alquisola; and Student Christian
Movement of the Philippines (SCMP) Chairman Ma.
Cristina Angela Guevarra (BAYAN et al.);
(i) The opposition-in-intervention dated March 3, 2010 of
Walden F. Bello and Loretta Ann P. Rosales (Bello et al.);
and
(j) The consolidated comment/opposition-in-intervention
dated March 4, 2010 of the Women Trial Lawyers
Organization of the Philippines (WTLOP), represented by
Atty. Yolanda Quisumbing-Javellana; Atty. Belleza
Alojado Demaisip; Atty. Teresita Gandionco-Oledan; Atty.
Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta.
Romana; Atty. Leonila de Jesus; and Atty. Guinevere de
Leon (WTLOP).
Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao
del Sur, and NUPL take the position that De Castro's petition was
bereft of any basis, because under Section 15, Article VII, the
outgoing President is constitutionally banned from making any
appointments from March 10, 2010 until June 30, 2010, including
the appointment of the successor of Chief Justice Puno. Hence,
mandamus does not lie to compel the JBC to submit the list of
nominees to the outgoing President if the constitutional prohibition
is already in effect. Tan adds that the prohibition against midnight
appointments was applied by the Court to the appointments to the
Judiciary made by then President Ramos, with the Court holding
that the duty of the President to fill the vacancies within 90 days
from occurrence of the vacancies (for the Supreme Court) or from
the submission of the list (for all other courts) was not an excuse to
violate the constitutional prohibition.
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al.,
and Bello et al. oppose the insistence that Valenzuela recognizes
the possibility that the President may appoint the next Chief Justice
if exigent circumstances warrant the appointment, because that
recognition is obiter dictum; and aver that the absence of a Chief
Justice or even an Associate Justice does not cause epic damage
or absolute disruption or paralysis in the operations of the Judiciary.
They insist that even without the successor of Chief Justice Puno
being appointed by the incumbent President, the Court is allowed
to sit and adjudge en banc or in divisions of three, five or seven
members at its discretion; that a full membership of the Court is not
necessary; that petitioner De Castro's fears are unfounded and
baseless, being based on a mere possibility, the occurrence of
which is entirely unsure; that it is not in the national interest to have
a Chief Justice whose appointment is unconstitutional and,
therefore, void; and that such a situation will create a crisis in the
judicial system and will worsen an already vulnerable political
situation.
ice is imperative for the stability of the judicial system and the
political situation in the country when the election-related questions
reach the Court as false, because there is an existing law on filling
the void brought about by a vacancy in the office of Chief Justice;
that the law is Section 12 of the Judiciary Act of 1948, which has
not been repealed by Batas Pambansa Blg. 129 or any other law;
that a temporary or an acting Chief Justice is not anathema to
judicial independence; that the designation of an acting Chief
Justice is not only provided for by law, but is also dictated by
practical necessity; that the practice was intended to be enshrined
in the 1987 Constitution, but the Commissioners decided not to
write it in the Constitution on account of the settled practice; that
the practice was followed under the 1987 Constitution, when, in
1992, at the end of the term of Chief Justice Marcelo B. Fernan,
Associate Justice Andres Narvasa assumed the position as Acting
Chief Justice prior to his official appointment as Chief Justice; that
said filling up of a vacancy in the office of the Chief Justice was
acknowledged and even used by analogy in the case of the
vacancy of the Chairman of the Commission on Elections,
per Brillantes v. Yorac, 192 SCRA 358; and that the history of the
Supreme Court has shown that this rule of succession has been
repeatedly observed and has become a part of its tradition.
Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that
the Omnibus Election Code penalizes as an election offense the
act of any government official who appoints, promotes, or gives any
increase in salary or remuneration or privilege to any government
official or employee during the period of 45 days before a regular
election; that the provision covers all appointing heads, officials,
and officers of a government office, agency or instrumentality,
including the President; that for the incumbent President to appoint
the next Chief Justice upon the retirement of Chief Justice Puno,
or during the period of the ban under the Omnibus Election Code,
constitutes an election offense; that even an appointment of the
next Chief Justice prior to the election ban is fundamentally invalid
and without effect because there can be no appointment until a
vacancy occurs; and that the vacancy for the position can occur
only by May 17, 2010.
Intervenor Boiser adds that De Castro's prayer to compel the
submission of nominees by the JBC to the incumbent President is
off-tangent because the position of Chief Justice is still not vacant;
that to speak of a list, much more a submission of such list, before
a vacancy occurs is glaringly premature; that the proposed
advance appointment by the incumbent President of the next Chief
Justice will be unconstitutional; and that no list of nominees can be
submitted by the JBC if there is no vacancy.
All the intervenors-oppositors submit that Section 15, Article VII
makes no distinction between the kinds of appointments made by
the President; and that the Court, in Valenzuela, ruled that the
appointments by the President of the two judges during the
prohibition period were void.
Intervenor WTLOP posits that Section 15, Article VII of the 1987
Constitution does not apply only to the appointments in the
Executive Department, but also to judicial appointments, contrary
to the submission of PHILCONSA; that Section 15 does not
distinguish; and that Valenzuela already interpreted the prohibition
as applicable to judicial appointments.
Intervenor WTLOP further posits that petitioner Soriano's
contention that the power to appoint the Chief Justice is vested, not
in the President, but in the Supreme Court, is utterly baseless,
because the Chief Justice is also a Member of the Supreme Court
as contemplated under Section 9, Article VIII; and that, at any rate,
the term "members" was interpreted in Vargas v. Rillaroza (G.R.
No. L-1612, February 26, 1948) to refer to the Chief Justice and
the Associate Justices of the Supreme Court; that PHILCONSA's
prayer that the Court pass a resolution declaring that persons who
manifest their interest as nominees, but with conditions, shall not
be considered nominees by the JBC is diametrically opposed to the
arguments in the body of its petition; that such glaring
inconsistency between the allegations in the body and the relief
prayed for highlights the lack of merit of PHILCONSA's petition; that
the role of the JBC cannot be separated from the constitutional
prohibition on the President; and that the Court must direct the JBC
to follow the rule of law, that is, to submit the list of nominees only
to the next duly elected President after the period of the
constitutional ban against midnight appointments has expired.
Oppositor IBP Davao del Sur opines that the JBC - because it is
neither a judicial nor a quasi-judicial body - has no duty under the
Constitution to resolve the question of whether the incumbent
President can appoint a Chief Justice during the period of
prohibition; that even if the JBC has already come up with a short
list, it still has to bow to the strict limitations under Section 15,
Article VII; that should the JBC defer submission of the list, it is not
arrogating unto itself a judicial function, but simply respecting the
clear mandate of the Constitution; and that the application of the
general rule in Section 15, Article VII to the Judiciary does not
violate the principle of separation of powers, because said
provision is an exception.
Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the
JBC's act of nominating appointees to the Supreme Court is purely
ministerial and does not involve the exercise of judgment; that there
can be no default on the part of the JBC in submitting the list of
nominees to the President, considering that the call for applications
only begins from the occurrence of the vacancy in the Supreme
Court; and that the commencement of the process of screening of
applicants to fill the vacancy in the office of the Chief Justice only
begins from the retirement on May 17, 2010, for, prior to this date,
there is no definite legal basis for any party to claim that the
submission or non-submission of the list of nominees to the
President by the JBC is a matter of right under law.
The main question presented in all the filings herein - because it
involves two seemingly conflicting provisions of the Constitution -
imperatively demands the attention and resolution of this Court, the
only authority that can resolve the question definitively and finally.
The imperative demand rests on the ever-present need, first, to
safeguard the independence, reputation, and integrity of the entire
Judiciary, particularly this Court, an institution that has been
unnecessarily dragged into the harsh polemics brought on by the
controversy; second, to settle once and for all the doubt about an
outgoing President's power to appoint to the Judiciary within the
long period starting two months before the presidential elections
until the end of the presidential term; and third, to set a definite
guideline for the JBC to follow in the discharge of its primary office
of screening and nominating qualified persons for appointment to
the Judiciary.
Thus, we resolve.
Ruling of the Court
Locus Standi of Petitioners
The preliminary issue to be settled is whether or not the
petitioners have locus standi.
Black defines locus standi as "a right of appearance in a court of
justice on a given question."41 In public or constitutional litigations,
the Court is often burdened with the determination of the locus
standi of the petitioners due to the ever-present need to regulate
the invocation of the intervention of the Court to correct any official
action or policy in order to avoid obstructing the efficient functioning
of public officials and offices involved in public service. It is
required, therefore, that the petitioner must have a personal stake
in the outcome of the controversy, for, as indicated in Agan, Jr. v.
Philippine International Air Terminals Co., Inc.:42
The question on legal standing is whether such parties have
"alleged such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions." 43 Accordingly, it
has been held that the interest of a person assailing the
constitutionality of a statute must be direct and personal. He must
be able to show, not only that the law or any government act is
invalid, but also that he sustained or is in imminent danger of
sustaining some direct injury as a result of its enforcement, and not
merely that he suffers thereby in some indefinite way. It must
appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or that
he is about to be subjected to some burdens or penalties by reason
of the statute or act complained of.44
It is true that as early as in 1937, in People v. Vera,45 the Court
adopted the direct injury test for determining whether a petitioner
in a public action had locus standi. There, the Court held that the
person who would assail the validity of a statute must have "a
personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result." Vera was
followed in Custodio v. President of the Senate,46 Manila Race
Horse Trainers' Association v. De la Fuente,47 Anti-Chinese
League of the Philippines v. Felix,48 and Pascual v. Secretary of
Public Works.49
Yet, the Court has also held that the requirement of locus standi,
being a mere procedural technicality, can be waived by the Court
in the exercise of its discretion. For instance, in 1949, in Araneta v.
Dinglasan,50 the Court liberalized the approach when the cases
had "transcendental importance." Some notable controversies
whose petitioners did not pass the direct injury test were allowed to
be treated in the same way as in Araneta v. Dinglasan.51
In the 1975 decision in Aquino v. Commission on Elections,52 this
Court decided to resolve the issues raised by the petition due to
their "far-reaching implications," even if the petitioner had no
personality to file the suit. The liberal approach of Aquino v.
Commission on Elections has been adopted in several notable
cases, permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or
validity of laws, regulations, and rulings.53
However, the assertion of a public right as a predicate for
challenging a supposedly illegal or unconstitutional executive or
legislative action rests on the theory that the petitioner represents
the public in general. Although such petitioner may not be as
adversely affected by the action complained against as are others,
it is enough that he sufficiently demonstrates in his petition that he
is entitled to protection or relief from the Court in the vindication of
a public right.
Quite often, as here, the petitioner in a public action sues as a
citizen or taxpayer to gain locus standi. That is not surprising, for
even if the issue may appear to concern only the public in general,
such capacities nonetheless equip the petitioner with adequate
interest to sue. In David v. Macapagal-Arroyo,54 the Court aptly
explains why:
Case law in most jurisdictions now allows both "citizen" and
"taxpayer" standing in public actions. The distinction was first laid
down in Beauchamp v. Silk,55 where it was held that the plaintiff in
a taxpayer's suit is in a different category from the plaintiff in a
citizen's suit. In the former, the plaintiff is affected by the
expenditure of public funds, while in the latter, he is but the
mere instrument of the public concern. As held by the New York
Supreme Court in People ex rel Case v. Collins:56 "In matter of
mere public right, however…the people are the real parties…It
is at least the right, if not the duty, of every citizen to interfere
and see that a public offence be properly pursued and
punished, and that a public grievance be remedied." With
respect to taxpayer's suits, Terr v. Jordan57 held that "the right of
a citizen and a taxpayer to maintain an action in courts to
restrain the unlawful use of public funds to his injury cannot
be denied."58
Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No.
191032) and Peralta (G.R. No. 191149) all assert their right as
citizens filing their petitions on behalf of the public who are directly
affected by the issue of the appointment of the next Chief Justice.
De Castro and Soriano further claim standing as taxpayers, with
Soriano averring that he is affected by the continuing proceedings
in the JBC, which involve "unnecessary, if not, illegal disbursement
of public funds."59
PHILCONSA alleges itself to be a non-stock, non-profit
organization existing under the law for the purpose of defending,
protecting, and preserving the Constitution and promoting its
growth and flowering. It also alleges that the Court has recognized
its legal standing to file cases on constitutional issues in several
cases.60
In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the
Philippines, a member of the Philippine Bar engaged in the active
practice of law, and a former Solicitor General, former Minister of
Justice, former Member of the Interim Batasang Pambansa and the
Regular Batasang Pambansa, and former member of the Faculty
of the College of Law of the University of the Philippines.
The petitioners in G.R. No. 191342 are the Governors of the
Integrated Bar of the Philippines (IBP) for Southern Luzon and
Eastern Visayas. They allege that they have the legal standing to
enjoin the submission of the list of nominees by the JBC to the
President, for "[a]n adjudication of the proper interpretation and
application of the constitutional ban on midnight appointments with
regard to respondent JBC's function in submitting the list of
nominees is well within the concern of petitioners, who are duty
bound to ensure that obedience and respect for the Constitution is
upheld, most especially by government offices, such as respondent
JBC, who are specifically tasked to perform crucial functions in the
whole scheme of our democratic institution." They further allege
that, reposed in them as members of the Bar, is a clear legal
interest in the process of selecting the members of the Supreme
Court, and in the selection of the Chief Justice, considering that the
person appointed becomes a member of the body that has
constitutional supervision and authority over them and other
members of the legal profession.61
The Court rules that the petitioners have each demonstrated
adequate interest in the outcome of the controversy as to vest them
with the requisite locus standi. The issues before us are of
transcendental importance to the people as a whole, and to the
petitioners in particular. Indeed, the issues affect everyone
(including the petitioners), regardless of one's personal interest in
life, because they concern that great doubt about the authority of
the incumbent President to appoint not only the successor of the
retiring incumbent Chief Justice, but also others who may serve in
the Judiciary, which already suffers from a far too great number of
vacancies in the ranks of trial judges throughout the country.
In any event, the Court retains the broad discretion to waive the
requirement of legal standing in favor of any petitioner when the
matter involved has transcendental importance, or otherwise
requires a liberalization of the requirement.62
Yet, if any doubt still lingers about the locus standi of any petitioner,
we dispel the doubt now in order to remove any obstacle or
obstruction to the resolution of the essential issue squarely
presented herein. We are not to shirk from discharging our solemn
duty by reason alone of an obstacle more technical than otherwise.
In Agan, Jr. v. Philippine International Air Terminals Co., Inc.,63 we
pointed out: "Standing is a peculiar concept in constitutional law
because in some cases, suits are not brought by parties who have
been personally injured by the operation of a law or any other
government act but by concerned citizens, taxpayers or voters who
actually sue in the public interest." But even if, strictly speaking, the
petitioners "are not covered by the definition, it is still within the
wide discretion of the Court to waive the requirement and so
remove the impediment to its addressing and resolving the serious
constitutional questions raised."64
Justiciability
Intervenor NUPL maintains that there is no actual case or
controversy that is appropriate or ripe for adjudication, considering
that although the selection process commenced by the JBC is
going on, there is yet no final list of nominees; hence, there is no
imminent controversy as to whether such list must be submitted to
the incumbent President, or reserved for submission to the
incoming President.
Intervenor Tan raises the lack of any actual justiciable controversy
that is ripe for judicial determination, pointing out that petitioner De
Castro has not even shown that the JBC has already completed its
selection process and is now ready to submit the list to the
incumbent President; and that petitioner De Castro is merely
presenting a hypothetical scenario that is clearly not sufficient for
the Court to exercise its power of judicial review.
Intervenors Corvera and Lim separately opine that De Castro's
petition rests on an overbroad and vague allegation of political
tension, which is insufficient basis for the Court to exercise its
power of judicial review.
Intervenor BAYAN et al. contend that the petitioners are seeking a
mere advisory opinion on what the JBC and the President should
do, and are not invoking any issues that are justiciable in nature.
Intervenors Bello et al. submit that there exist no conflict of legal
rights and no assertion of opposite legal claims in any of the
petitions; that PHILCONSA does not allege any action taken by the
JBC, but simply avers that the conditional manifestations of two
Members of the Court, accented by the divided opinions and
interpretations of legal experts, or associations of lawyers and law
students on the issues published in the daily newspapers are
"matters of paramount and transcendental importance to the
bench, bar and general public"; that PHILCONSA fails not only to
cite any legal duty or allege any failure to perform the duty, but also
to indicate what specific action should be done by the JBC; that
Mendoza does not even attempt to portray the matter as a
controversy or conflict of rights, but, instead, prays that the Court
should "rule for the guidance of" the JBC; that the fact that the Court
supervises the JBC does not automatically imply that the Court can
rule on the issues presented in the Mendoza petition, because
supervision involves oversight, which means that the subordinate
officer or body must first act, and if such action is not in accordance
with prescribed rules, then, and only then, may the person
exercising oversight order the action to be redone to conform to the
prescribed rules; that the Mendoza petition does not allege that the
JBC has performed a specific act susceptible to correction for being
illegal or unconstitutional; and that the Mendoza petition asks the
Court to issue an advisory ruling, not to exercise its power of
supervision to correct a wrong act by the JBC, but to declare the
state of the law in the absence of an actual case or controversy.
We hold that the petitions set forth an actual case or controversy
that is ripe for judicial determination. The reality is that the JBC
already commenced the proceedings for the selection of the
nominees to be included in a short list to be submitted to the
President for consideration of which of them will succeed Chief
Justice Puno as the next Chief Justice. Although the position is not
yet vacant, the fact that the JBC began the process of nomination
pursuant to its rules and practices, although it has yet to decide
whether to submit the list of nominees to the incumbent outgoing
President or to the next President, makes the situation ripe for
judicial determination, because the next steps are the public
interview of the candidates, the preparation of the short list of
candidates, and the "interview of constitutional experts, as may be
needed."
A part of the question to be reviewed by the Court is whether the
JBC properly initiated the process, there being an insistence from
some of the oppositors-intervenors that the JBC could only do so
once the vacancy has occurred (that is, after May 17, 2010).
Another part is, of course, whether the JBC may resume its process
until the short list is prepared, in view of the provision of Section
4(1), Article VIII, which unqualifiedly requires the President to
appoint one from the short list to fill the vacancy in the Supreme
Court (be it the Chief Justice or an Associate Justice) within 90
days from the occurrence of the vacancy.
The ripeness of the controversy for judicial determination may not
be doubted. The challenges to the authority of the JBC to open the
process of nomination and to continue the process until the
submission of the list of nominees; the insistence of some of the
petitioners to compel the JBC through mandamus to submit the
short list to the incumbent President; the counter-insistence of the
intervenors to prohibit the JBC from submitting the short list to the
incumbent President on the ground that said list should be
submitted instead to the next President; the strong position that the
incumbent President is already prohibited under Section 15, Article
VII from making any appointments, including those to the Judiciary,
starting on May 10, 2010 until June 30, 2010; and the contrary
position that the incumbent President is not so prohibited are only
some of the real issues for determination. All such issues establish
the ripeness of the controversy, considering that for some the short
list must be submitted before the vacancy actually occurs by May
17, 2010. The outcome will not be an abstraction, or a merely
hypothetical exercise. The resolution of the controversy will surely
settle - with finality - the nagging questions that are preventing the
JBC from moving on with the process that it already began, or that
are reasons persuading the JBC to desist from the rest of the
process.
We need not await the occurrence of the vacancy by May 17, 2010
in order for the principal issue to ripe for judicial determination by
the Court. It is enough that one alleges conduct arguably affected
with a constitutional interest, but seemingly proscribed by the
Constitution. A reasonable certainty of the occurrence of the
perceived threat to a constitutional interest is sufficient to afford a
basis for bringing a challenge, provided the Court has sufficient
facts before it to enable it to intelligently adjudicate the
issues.65 Herein, the facts are not in doubt, for only legal issues
remain.
Substantive Merits
I
Prohibition under Section 15, Article VII does not apply to
appointments to fill a vacancy in the Supreme Court or to other
appointments to the Judiciary
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department), provides:
Section 15. Two months immediately before the next presidential
elections and up to the end of his term, a President or Acting
President shall not make appointments, except temporary
appointments to executive positions when continued vacancies
therein will prejudice public service or endanger public safety.
The other, Section 4 (1), Article VIII (Judicial Department), states:
Section 4. (1). The Supreme Court shall be composed of a Chief
Justice and fourteen Associate Justices. It may sit en banc or in its
discretion, in division of three, five, or seven Members. Any
vacancy shall be filled within ninety days from the occurrence
thereof.
In the consolidated petitions, the petitioners, with the exception of
Soriano, Tolentino and Inting, submit that the incumbent President
can appoint the successor of Chief Justice Puno upon his
retirement on May 17, 2010, on the ground that the prohibition
against presidential appointments under Section 15, Article VII
does not extend to appointments in the Judiciary.
The Court agrees with the submission.
First. The records of the deliberations of the Constitutional
Commission reveal that the framers devoted time to meticulously
drafting, styling, and arranging the Constitution. Such
meticulousness indicates that the organization and arrangement of
the provisions of the Constitution were not arbitrarily or whimsically
done by the framers, but purposely made to reflect their intention
and manifest their vision of what the Constitution should contain.
The Constitution consists of 18 Articles, three of which embody the
allocation of the awesome powers of government among the three
great departments, the Legislative (Article VI), the Executive
(Article VII), and the Judicial Departments (Article VIII). The
arrangement was a true recognition of the principle of separation
of powers that underlies the political structure, as Constitutional
Commissioner Adolfo S. Azcuna (later a worthy member of the
Court) explained in his sponsorship speech:
We have in the political part of this Constitution opted for the
separation of powers in government because we believe that the
only way to protect freedom and liberty is to separate and divide
the awesome powers of government. Hence, we return to the
separation of powers doctrine and the legislative, executive and
judicial departments.66
As can be seen, Article VII is devoted to the Executive Department,
and, among others, it lists the powers vested by the Constitution in
the President. The presidential power of appointment is dealt with
in Sections 14, 15 and 16 of the Article.
Article VIII is dedicated to the Judicial Department and defines the
duties and qualifications of Members of the Supreme Court, among
others. Section 4(1) and Section 9 of this Article are the provisions
specifically providing for the appointment of Supreme Court
Justices. In particular, Section 9 states that the appointment of
Supreme Court Justices can only be made by the President upon
the submission of a list of at least three nominees by the JBC;
Section 4(1) of the Article mandates the President to fill the
vacancy within 90 days from the occurrence of the vacancy.
Had the framers intended to extend the prohibition contained in
Section 15, Article VII to the appointment of Members of the
Supreme Court, they could have explicitly done so. They could not
have ignored the meticulous ordering of the provisions. They would
have easily and surely written the prohibition made explicit in
Section 15, Article VII as being equally applicable to the
appointment of Members of the Supreme Court in Article VIII itself,
most likely in Section 4 (1), Article VIII. That such specification was
not done only reveals that the prohibition against the President or
Acting President making appointments within two months before
the next presidential elections and up to the end of the President's
or Acting President's term does not refer to the Members of the
Supreme Court.
Although Valenzuela67 came to hold that the prohibition covered
even judicial appointments, it cannot be disputed that the
Valenzuela dictum did not firmly rest on the deliberations of the
Constitutional Commission. Thereby, the confirmation made to the
JBC by then Senior Associate Justice Florenz D. Regalado of this
Court, a former member of the Constitutional Commission, about
the prohibition not being intended to apply to the appointments to
the Judiciary, which confirmation Valenzuela even expressly
mentioned, should prevail.
Relevantly, Valenzuela adverted to the intent of the framers in the
genesis of Section 4 (1), Article VIII, viz:
V. Intent of the Constitutional Commission
The journal of the Commission which drew up the present
Constitution discloses that the original proposal was to have an
eleven-member Supreme Court. Commissioner Eulogio Lerum
wanted to increase the number of Justices to fifteen. He also
wished to ensure that that number would not be reduced for any
appreciable length of time (even only temporarily), and to this end
proposed that any vacancy "must be filled within two months from
the date that the vacancy occurs." His proposal to have a 15-
member Court was not initially adopted. Persisting however in his
desire to make certain that the size of the Court would not be
decreased for any substantial period as a result of vacancies,
Lerum proposed the insertion in the provision (anent the Court's
membership) of the same mandate that "IN CASE OF ANY
VACANCY, THE SAME SHALL BE FILLED WITHIN TWO
MONTHS FROM OCCURRENCE THEREOF." He later agreed to
suggestions to make the period three, instead of two, months. As
thus amended, the proposal was approved. As it turned out,
however, the Commission ultimately agreed on a fifteen-member
Court. Thus it was that the section fixing the composition of the
Supreme Court came to include a command to fill up any vacancy
therein within 90 days from its occurrence.
In this connection, it may be pointed out that that instruction that
any "vacancy shall be filled within ninety days" (in the last sentence
of Section 4 (1) of Article VIII) contrasts with the prohibition in
Section 15, Article VII, which is couched in stronger negative
language - that "a President or Acting President shall not make
appointments…"
The commission later approved a proposal of Commissioner Hilario
G. Davide, Jr. (now a Member of this Court) to add to what is now
Section 9 of Article VIII, the following paragraph: "WITH RESPECT
TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE
APPOINTMENT WITHIN NINETY DAYS FROM THE
SUBMISSION OF THE LIST" (of nominees by the Judicial and Bar
Council to the President). Davide stated that his purpose was to
provide a "uniform rule" for lower courts. According to him, the 90-
day period should be counted from submission of the list of
nominees to the President in view of the possibility that the
President might reject the list submitted to him and the JBC thus
need more time to submit a new one.
On the other hand, Section 15, Article VII - which in effect deprives
the President of his appointing power "two months immediately
before the next presidential elections up to the end of his term" -
was approved without discussion.68
However, the reference to the records of the Constitutional
Commission did not advance or support the result in Valenzuela.
Far to the contrary, the records disclosed the express intent of the
framers to enshrine in the Constitution, upon the initiative of
Commissioner Eulogio Lerum, "a command [to the President] to fill
up any vacancy therein within 90 days from its occurrence," which
even Valenzuela conceded.69 The exchanges during deliberations
of the Constitutional Commission on October 8, 1986 further show
that the filling of a vacancy in the Supreme Court within the 90-day
period was a true mandate for the President, viz:
MR. DE CASTRO. I understand that our justices now in the
Supreme Court, together with the Chief Justice, are only 11.
MR. CONCEPCION. Yes.
MR. DE CASTRO. And the second sentence of this subsection
reads: "Any vacancy shall be filled within ninety days from the
occurrence thereof."
MR. CONCEPCION. That is right.
MR. DE CASTRO. Is this now a mandate to the executive to fill
the vacancy?
MR. CONCEPCION. That is right. That is borne out of the fact
that in the past 30 years, seldom has the Court had a complete
complement.70
Moreover, the usage in Section 4(1), Article VIII of the word shall -
an imperative, operating to impose a duty that may be enforced 71 -
should not be disregarded. Thereby, Sections 4(1) imposes on the
President the imperative duty to make an appointment of a Member
of the Supreme Court within 90 days from the occurrence of the
vacancy. The failure by the President to do so will be a clear
disobedience to the Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the
President to fill the vacancy in the Supreme Court was undoubtedly
a special provision to establish a definite mandate for the President
as the appointing power, and cannot be defeated by mere judicial
interpretation in Valenzuela to the effect that Section 15, Article VII
prevailed because it was "couched in stronger negative language."
Such interpretation even turned out to be conjectural, in light of the
records of the Constitutional Commission's deliberations on
Section 4 (1), Article VIII.
How Valenzuela justified its pronouncement and result is hardly
warranted. According to an authority on statutory construction:72
xxx the court should seek to avoid any conflict in the provisions of
the statute by endeavoring to harmonize and reconcile every part
so that each shall be effective. It is not easy to draft a statute, or
any other writing for that matter, which may not in some manner
contain conflicting provisions. But what appears to the reader to be
a conflict may not have seemed so to the drafter. Undoubtedly,
each provision was inserted for a definite reason. Often by
considering the enactment in its entirety, what appears to be on its
face a conflict may be cleared up and the provisions reconciled.
Consequently, that construction which will leave every word
operative will be favored over one which leaves some word or
provision meaningless because of inconsistency. But a word
should not be given effect, if to do so gives the statute a meaning
contrary to the intent of the legislature. On the other hand, if full
effect cannot be given to the words of a statute, they must be made
effective as far as possible. Nor should the provisions of a statute
which are inconsistent be harmonized at a sacrifice of the
legislative intention. It may be that two provisions are irreconcilable;
if so, the one which expresses the intent of the law-makers should
control. And the arbitrary rule has been frequently announced that
where there is an irreconcilable conflict between the different
provisions of a statute, the provision last in order of position will
prevail, since it is the latest expression of the legislative will.
Obviously, the rule is subject to deserved criticism. It is seldom
applied, and probably then only where an irreconcilable conflict
exists between different sections of the same act, and after all other
means of ascertaining the meaning of the legislature have been
exhausted. Where the conflict is between two statutes, more may
be said in favor of the rule's application, largely because of the
principle of implied repeal.
In this connection, PHILCONSA's urging of a revisit and a review
of Valenzuela is timely and appropriate. Valenzuela arbitrarily
ignored the express intent of the Constitutional Commission to
have Section 4 (1), Article VIII stand independently of any other
provision, least of all one found in Article VII. It further ignored that
the two provisions had no irreconcilable conflict, regardless of
Section 15, Article VII being couched in the negative. As judges,
we are not to unduly interpret, and should not accept an
interpretation that defeats the intent of the framers. 73
Consequently, prohibiting the incumbent President from appointing
a Chief Justice on the premise that Section 15, Article VII extends
to appointments in the Judiciary cannot be sustained. A
misinterpretation like Valenzuela should not be allowed to last after
its false premises have been exposed.74 It will not do to merely
distinguish Valenzuela from these cases, for the result to be
reached herein is entirely incompatible with what Valenzuela
decreed. Consequently, Valenzuela now deserves to be quickly
sent to the dustbin of the unworthy and forgettable.
We reverse Valenzuela.
Second. Section 15, Article VII does not apply as well to all other
appointments in the Judiciary.
There is no question that one of the reasons underlying the
adoption of Section 15 as part of Article VII was to eliminate
midnight appointments from being made by an outgoing Chief
Executive in the mold of the appointments dealt with in the leading
case of Aytona v. Castillo.75 In fact, in Valenzuela, the Court so
observed, stating that:
xxx it appears that Section 15, Article VII is directed against two
types of appointments: (1) those made for buying votes and (2)
those made for partisan considerations. The first refers to those
appointments made within the two months preceding a Presidential
election and are similar to those which are declared election
offenses in the Omnibus Election Code, viz.:
xxx
The second type of appointments prohibited by Section 15, Article
VII consists of the so-called "midnight" appointments. In Aytona v.
Castillo, it was held that after the proclamation of Diosdado
Macapagal as duly elected President, President Carlos P. Garcia,
who was defeated in his bid for reelection, became no more than a
"caretaker" administrator whose duty was to "prepare for the
orderly transfer of authority to the incoming President." Said the
Court:
"The filling up of vacancies in important positions, if few, and so
spaced as to afford some assurance of deliberate action and
careful consideration of the need for the appointment and
appointee's qualifications may undoubtedly be permitted. But the
issuance of 350 appointments in one night and the planned
induction of almost all of them in a few hours before the
inauguration of the new President may, with some reason, be
regarded by the latter as an abuse of Presidential prerogatives, the
steps taken being apparently a mere partisan effort to fill all vacant
positions irrespective of fitness and other conditions, and thereby
to deprive the new administration of an opportunity to make the
corresponding appointments."
As indicated, the Court recognized that there may well be
appointments to important positions which have to be made even
after the proclamation of the new President. Such appointments,
so long as they are "few and so spaced as to afford some
assurance of deliberate action and careful consideration of the
need for the appointment and the appointee's qualifications," can
be made by the outgoing President. Accordingly, several
appointments made by President Garcia, which were shown to
have been well considered, were upheld.
Section 15, Article VII has a broader scope than the Aytona ruling.
It may not unreasonably be deemed to contemplate not only
"midnight" appointments - those made obviously for partisan
reasons as shown by their number and the time of their making -
but also appointments presumed made for the purpose of
influencing the outcome of the Presidential election.
On the other hand, the exception in the same Section 15 of Article
VII - allowing appointments to be made during the period of the ban
therein provided - is much narrower than that recognized in Aytona.
The exception allows only the making of temporary appointments
to executive positions when continued vacancies will prejudice
public service or endanger public safety. Obviously, the article
greatly restricts the appointing power of the President during the
period of the ban.
Considering the respective reasons for the time frames for filling
vacancies in the courts and the restriction on the President's power
of appointment, it is this Court's view that, as a general proposition,
in case of conflict, the former should yield to the latter. Surely, the
prevention of vote-buying and similar evils outweighs the need for
avoiding delays in filling up of court vacancies or the disposition of
some cases. Temporary vacancies can abide the period of the ban
which, incidentally and as earlier pointed out, comes to exist only
once in every six years. Moreover, those occurring in the lower
courts can be filled temporarily by designation. But prohibited
appointments are long-lasting and permanent in their effects. They
may, as earlier pointed out, in fact influence the results of elections
and, for that reason, their making is considered an election
offense.76
Given the background and rationale for the prohibition in Section
15, Article VII, we have no doubt that the Constitutional
Commission confined the prohibition to appointments made in the
Executive Department. The framers did not need to extend the
prohibition to appointments in the Judiciary, because their
establishment of the JBC and their subjecting the nomination and
screening of candidates for judicial positions to the unhurried and
deliberate prior process of the JBC ensured that there would no
longer be midnight appointments to the Judiciary. If midnight
appointments in the mold of Aytona were made in haste and with
irregularities, or made by an outgoing Chief Executive in the last
days of his administration out of a desire to subvert the policies of
the incoming President or for partisanship, 77 the appointments to
the Judiciary made after the establishment of the JBC would not be
suffering from such defects because of the JBC's prior processing
of candidates. Indeed, it is axiomatic in statutory construction that
the ascertainment of the purpose of the enactment is a step in the
process of ascertaining the intent or meaning of the enactment,
because the reason for the enactment must necessarily shed
considerable light on "the law of the statute," i.e., the intent; hence,
the enactment should be construed with reference to its intended
scope and purpose, and the court should seek to carry out this
purpose rather than to defeat it.78
Also, the intervention of the JBC eliminates the danger that
appointments to the Judiciary can be made for the purpose of
buying votes in a coming presidential election, or of satisfying
partisan considerations. The experience from the time of the
establishment of the JBC shows that even candidates for judicial
positions at any level backed by people influential with the
President could not always be assured of being recommended for
the consideration of the President, because they first had to
undergo the vetting of the JBC and pass muster there. Indeed, the
creation of the JBC was precisely intended to de-politicize the
Judiciary by doing away with the intervention of the Commission on
Appointments. This insulating process was absent from the Aytona
midnight appointment.
Third. As earlier stated, the non-applicability of Section 15, Article
VII to appointments in the Judiciary was confirmed by then Senior
Associate Justice Regalado to the JBC itself when it met on March
9, 1998 to discuss the question raised by some sectors about the
"constitutionality of xxx appointments" to the Court of Appeals in
light of the forthcoming presidential elections. He assured that "on
the basis of the (Constitutional) Commission's records, the election
ban had no application to appointments to the Court of
Appeals."79 This confirmation was accepted by the JBC, which then
submitted to the President for consideration the nominations for the
eight vacancies in the Court of Appeals.80
The fault of Valenzuela was that it accorded no weight and due
consideration to the confirmation of Justice Regalado. Valenzuela
was weak, because it relied on interpretation to determine the
intent of the framers rather than on the deliberations of the
Constitutional Commission. Much of the unfounded doubt about
the President's power to appoint during the period of prohibition in
Section 15, Article VII could have been dispelled since its
promulgation on November 9, 1998, had Valenzuela properly
acknowledged and relied on the confirmation of a distinguished
member of the Constitutional Commission like Justice Regalado.
Fourth. Of the 23 sections in Article VII, three (i.e., Section 14,
Section15, and Section 16) concern the appointing powers of the
President.
Section 14 speaks of the power of the succeeding President to
revoke appointments made by an Acting President, 81 and evidently
refers only to appointments in the Executive Department. It has no
application to appointments in the Judiciary, because temporary or
acting appointments can only undermine the independence of the
Judiciary due to their being revocable at will.82 The letter and spirit
of the Constitution safeguard that independence. Also, there is no
law in the books that authorizes the revocation of appointments in
the Judiciary. Prior to their mandatory retirement or resignation,
judges of the first and second level courts and the Justices of the
third level courts may only be removed for cause, but the Members
of the Supreme Court may be removed only by impeachment.
Section 16 covers only the presidential appointments that require
confirmation by the Commission on Appointments. Thereby, the
Constitutional Commission restored the requirement of
confirmation by the Commission on Appointments after the
requirement was removed from the 1973 Constitution. Yet,
because of Section 9 of Article VIII, the restored requirement did
not include appointments to the Judiciary.83
Section 14, Section 15, and Section 16 are obviously of the same
character, in that they affect the power of the President to appoint.
The fact that Section 14 and Section 16 refer only to appointments
within the Executive Department renders conclusive that Section
15 also applies only to the Executive Department. This conclusion
is consistent with the rule that every part of the statute must be
interpreted with reference to the context, i.e. that every part must
be considered together with the other parts, and kept subservient
to the general intent of the whole enactment.84 It is absurd to
assume that the framers deliberately situated Section 15 between
Section 14 and Section 16, if they intended Section 15 to cover all
kinds of presidential appointments. If that was their intention in
respect of appointments to the Judiciary, the framers, if only to be
clear, would have easily and surely inserted a similar prohibition in
Article VIII, most likely within Section 4 (1) thereof.
Fifth. To hold like the Court did in Valenzuela that Section 15
extends to appointments to the Judiciary further undermines the
intent of the Constitution of ensuring the independence of the
Judicial Department from the Executive and Legislative
Departments. Such a holding will tie the Judiciary and the Supreme
Court to the fortunes or misfortunes of political leaders vying for the
Presidency in a presidential election. Consequently, the wisdom of
having the new President, instead of the current incumbent
President, appoint the next Chief Justice is itself suspect, and
cannot ensure judicial independence, because the appointee can
also become beholden to the appointing authority. In contrast, the
appointment by the incumbent President does not run the same
risk of compromising judicial independence, precisely because her
term will end by June 30, 2010.
Sixth. The argument has been raised to the effect that there will be
no need for the incumbent President to appoint during the
prohibition period the successor of Chief Justice Puno within the
context of Section 4 (1), Article VIII, because anyway there will still
be about 45 days of the 90 days mandated in Section 4(1), Article
VIII remaining.
The argument is flawed, because it is focused only on the coming
vacancy occurring from Chief Justice Puno's retirement by May 17,
2010. It ignores the need to apply Section 4(1) to every situation of
a vacancy in the Supreme Court.
The argument also rests on the fallacious assumption that there
will still be time remaining in the 90-day period under Section 4(1),
Article VIII. The fallacy is easily demonstrable, as the OSG has
shown in its comment.
Section 4 (3), Article VII requires the regular elections to be held on
the second Monday of May, letting the elections fall on May 8, at
the earliest, or May 14, at the latest. If the regular presidential
elections are held on May 8, the period of the prohibition is 115
days. If such elections are held on May 14, the period of the
prohibition is 109 days. Either period of the prohibition is longer
than the full mandatory 90-day period to fill the vacancy in the
Supreme Court. The result is that there are at least 19 occasions
(i.e., the difference between the shortest possible period of the ban
of 109 days and the 90-day mandatory period for appointments) in
which the outgoing President would be in no position to comply with
the constitutional duty to fill up a vacancy in the Supreme Court. It
is safe to assume that the framers of the Constitution could not
have intended such an absurdity. In fact, in their deliberations on
the mandatory period for the appointment of Supreme Court
Justices under Section 4 (1), Article VIII, the framers neither
discussed, nor mentioned, nor referred to the ban against midnight
appointments under Section 15, Article VII, or its effects on the 90-
day period, or vice versa. They did not need to, because they never
intended Section 15, Article VII to apply to a vacancy in the
Supreme Court, or in any of the lower courts.
Seventh. As a matter of fact, in an extreme case, we can even raise
a doubt on whether a JBC list is necessary at all for the President
- any President - to appoint a Chief Justice if the appointee is to
come from the ranks of the sitting justices of the Supreme Court.
Sec. 9, Article VIII says:
xxx. The Members of the Supreme Court xxx shall be appointed by
the President from a list of at least three nominees prepared by the
Judicial and Bar Council for any vacancy. Such appointments need
no confirmation.
xxx
The provision clearly refers to an appointee coming into the
Supreme Court from the outside, that is, a non-member of the Court
aspiring to become one. It speaks of candidates for the Supreme
Court, not of those who are already members or sitting justices of
the Court, all of whom have previously been vetted by the JBC.
Can the President, therefore, appoint any of the incumbent Justices
of the Court as Chief Justice?
The question is not squarely before us at the moment, but it should
lend itself to a deeper analysis if and when circumstances permit.
It should be a good issue for the proposed Constitutional
Convention to consider in the light of Senate President Juan Ponce
Enrile's statement that the President can appoint the Chief Justice
from among the sitting justices of the Court even without a JBC list.
II
The Judiciary Act of 1948
The posture has been taken that no urgency exists for the
President to appoint the successor of Chief Justice Puno,
considering that the Judiciary Act of 1948 can still address the
situation of having the next President appoint the successor.
Section 12 of the Judiciary Act of 1948 states:
Section 12. Vacancy in Office of Chief Justice. - In case of a
vacancy in the office of Chief Justice of the Supreme Court or of
his inability to perform the duties and powers of his office, they shall
devolve upon the Associate Justice who is first in precedence, until
such disability is removed, or another Chief Justice is appointed
and duly qualified. This provision shall apply to every Associate
Justice who succeeds to the office of Chief Justice.
The provision calls for an Acting Chief Justice in the event of a
vacancy in the office of the Chief Justice, or in the event that the
Chief Justice is unable to perform his duties and powers. In either
of such circumstances, the duties and powers of the office of the
Chief Justice shall devolve upon the Associate Justice who is first
in precedence until a new Chief Justice is appointed or until the
disability is removed.
Notwithstanding that there is no pressing need to dwell on this
peripheral matter after the Court has hereby resolved the question
of consequence, we do not find it amiss to confront the matter now.
We cannot agree with the posture.
A review of Sections 4(1) and 9 of Article VIII shows that the
Supreme Court is composed of a Chief Justice and 14 Associate
Justices, who all shall be appointed by the President from a list of
at least three nominees prepared by the JBC for every vacancy,
which appointments require no confirmation by the Commission on
Appointments. With reference to the Chief Justice, he or she is
appointed by the President as Chief Justice, and the appointment
is never in an acting capacity. The express reference to a Chief
Justice abhors the idea that the framers contemplated an Acting
Chief Justice to head the membership of the Supreme Court.
Otherwise, they would have simply written so in the Constitution.
Consequently, to rely on Section 12 of the Judiciary Act of 1948 in
order to forestall the imperative need to appoint the next Chief
Justice soonest is to defy the plain intent of the Constitution.
For sure, the framers intended the position of Chief Justice to be
permanent, not one to be occupied in an acting or temporary
capacity. In relation to the scheme of things under the present
Constitution, Section 12 of the Judiciary Act of 1948 only responds
to a rare situation in which the new Chief Justice is not yet
appointed, or in which the incumbent Chief Justice is unable to
perform the duties and powers of the office. It ought to be
remembered, however, that it was enacted because the Chief
Justice appointed under the 1935 Constitution was subject to the
confirmation of the Commission on Appointments, and the
confirmation process might take longer than expected.
The appointment of the next Chief Justice by the incumbent
President is preferable to having the Associate Justice who is first
in precedence take over. Under the Constitution, the heads of the
Legislative and Executive Departments are popularly elected, and
whoever are elected and proclaimed at once become the leaders
of their respective Departments. However, the lack of any
appointed occupant of the office of Chief Justice harms the
independence of the Judiciary, because the Chief Justice is the
head of the entire Judiciary. The Chief Justice performs functions
absolutely significant to the life of the nation. With the entire
Supreme Court being the Presidential Electoral Tribunal, the Chief
Justice is the Chairman of the Tribunal. There being no obstacle to
the appointment of the next Chief Justice, aside from its being
mandatory for the incumbent President to make within the 90-day
period from May 17, 2010, there is no justification to insist that the
successor of Chief Justice Puno be appointed by the next
President.
Historically, under the present Constitution, there has been no wide
gap between the retirement and the resignation of an incumbent
Chief Justice, on one hand, and the appointment to and
assumption of office of his successor, on the other hand. As
summarized in the comment of the OSG, the chronology of
succession is as follows:
1. When Chief Justice Claudio Teehankee retired on April
18, 1988, Chief Justice Pedro Yap was appointed on the
same day;
2. When Chief Justice Yap retired on July 1, 1988, Chief
Justice Marcelo Fernan was appointed on the same day;
3. When Chief Justice Fernan resigned on December 7,
1991, Chief Justice Andres Narvasa was appointed the
following day, December 8, 1991;
 4. When Chief Justice Narvasa retired on November 29,
1998, Chief Justice Hilario Davide, Jr. was sworn into
office the following early morning of November 30, 1998;
5. When Chief Justice Davide retired on December 19,
2005, Chief Justice Artemio Panganiban was appointed
the next day, December 20, 2005; and
6. When Chief Justice Panganiban retired on December
6, 2006, Chief Justice Reynato S. Puno took his oath as
Chief Justice at midnight of December 6, 2006.85
III
Writ of mandamus does not lie against the JBC
May the JBC be compelled to submit the list of nominees to the
President?
Mandamus shall issue when any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act that
the law specifically enjoins as a duty resulting from an office, trust,
or station.86 It is proper when the act against which it is directed is
one addressed to the discretion of the tribunal or
officer. Mandamus is not available to direct the exercise of a
judgment or discretion in a particular way.87
For mandamus to lie, the following requisites must be complied
with: (a) the plaintiff has a clear legal right to the act demanded; (b)
it must be the duty of the defendant to perform the act, because it
is mandated by law; (c) the defendant unlawfully neglects the
performance of the duty enjoined by law; (d) the act to be
performed is ministerial, not discretionary; and (e) there is no
appeal or any other plain, speedy and adequate remedy in the
ordinary course of law.
Section 8(5) and Section 9, Article VIII, mandate the JBC to submit
a list of at least three nominees to the President for every vacancy
in the Judiciary:
Section 8. xxx
(5) The Council shall have the principal function of
recommending appointees to the Judiciary. xxx
Section 9. The Members of the Supreme Court and judges of lower
courts shall be appointed by the President from a list of at least
three nominees prepared by the Judicial and Bar Council for
every vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments
within ninety days from the submission of the list.
However, Section 4(1) and Section 9, Article VIII, mandate the
President to fill the vacancy in the Supreme Court within 90 days
from the occurrence of the vacancy, and within 90 days from the
submission of the list, in the case of the lower courts. The 90-day
period is directed at the President, not at the JBC. Thus, the JBC
should start the process of selecting the candidates to fill the
vacancy in the Supreme Court before the occurrence of the
vacancy.
Under the Constitution, it is mandatory for the JBC to submit to the
President the list of nominees to fill a vacancy in the Supreme Court
in order to enable the President to appoint one of them within the
90-day period from the occurrence of the vacancy. The JBC has no
discretion to submit the list to the President after the vacancy
occurs, because that shortens the 90-day period allowed by the
Constitution for the President to make the appointment. For the
JBC to do so will be unconscionable on its part, considering that it
will thereby effectively and illegally deprive the President of the
ample time granted under the Constitution to reflect on the
qualifications of the nominees named in the list of the JBC before
making the appointment.
The duty of the JBC to submit a list of nominees before the start of
the President's mandatory 90-day period to appoint is ministerial,
but its selection of the candidates whose names will be in the list to
be submitted to the President lies within the discretion of the JBC.
The object of the petitions for mandamus herein should only refer
to the duty to submit to the President the list of nominees for every
vacancy in the Judiciary, because in order to constitute unlawful
neglect of duty, there must be an unjustified delay in performing
that duty.88 For mandamus to lie against the JBC, therefore, there
should be an unexplained delay on its part in recommending
nominees to the Judiciary, that is, in submitting the list to the
President.
The distinction between a ministerial act and a discretionary one
has been delineated in the following manner:
The distinction between a ministerial and discretionary act is well
delineated. A purely ministerial act or duty is one which an
officer or tribunal performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of his own
judgment upon the propriety or impropriety of the act done. If
the law imposes a duty upon a public officer and gives him the
right to decide how or when the duty shall be performed, such
duty is discretionary and not ministerial. The duty is ministerial
only when the discharge of the same requires neither the
exercise of official discretion or judgment.89
Accordingly, we find no sufficient grounds to grant the petitions for
mandamus and to issue a writ of mandamus against the JBC. The
actions for that purpose are premature, because it is clear that the
JBC still has until May 17, 2010, at the latest, within which to submit
the list of nominees to the President to fill the vacancy created by
the compulsory retirement of Chief Justice Puno.
IV
Writ of prohibition does not lie against the JBC
In light of the foregoing disquisitions, the conclusion is ineluctable
that only the President can appoint the Chief Justice. Hence,
Soriano's petition for prohibition in G.R. No. 191032, which
proposes to prevent the JBC from intervening in the process of
nominating the successor of Chief Justice Puno, lacks merit.
On the other hand, the petition for prohibition in G.R. No. 191342
is similarly devoid of merit. The challenge mounted against the
composition of the JBC based on the allegedly unconstitutional
allocation of a vote each to the ex officio members from the Senate
and the House of Representatives, thereby prejudicing the chances
of some candidates for nomination by raising the minimum number
of votes required in accordance with the rules of the JBC, is not
based on the petitioners' actual interest, because they have not
alleged in their petition that they were nominated to the JBC to fill
some vacancies in the Judiciary. Thus, the petitioners lack locus
standi on that issue.
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in
G.R. No. 191002 and G.R. No. 191149, and the petition
for mandamus in G.R. No. 191057 for being premature;
 2. Dismisses the petitions for prohibition in G.R. No.
191032 and G.R. No. 191342 for lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and,
accordingly, directs the Judicial and Bar Council:
(a) To resume its proceedings for the
nomination of candidates to fill the vacancy to
be created by the compulsory retirement of
Chief Justice Reynato S. Puno by May 17,
2010;
(b) To prepare the short list of nominees for the
position of Chief Justice;
(c) To submit to the incumbent President the
short list of nominees for the position of Chief
Justice on or before May 17, 2010; and
(d) To continue its proceedings for the
nomination of candidates to fill other vacancies
in the Judiciary and submit to the President the
short list of nominees corresponding thereto in
accordance with this decision.
SO ORDERED.
Facts:
In 1994, instead of having only 7 members, an eighth member was
added to the JBC as two representatives from Congress began
sitting in the JBC – one from the House of Representatives and one
from the Senate, with each having one-half (1/2) of a vote. Then,
the JBC En Banc, in separate meetings held in 2000 and 2001,
decided to allow the representatives from the Senate and the
House of Representatives one full vote each. Senator Francis
Joseph G. Escudero and Congressman Niel C. Tupas, Jr.
(respondents) simultaneously sit in the JBC as representatives of
the legislature. It is this practice that petitioner has questioned in
this petition. Respondents argued that the crux of the controversy
is the phrase “a representative of Congress.” It is their theory that
the two houses, the Senate and the House of Representatives, are
permanent and mandatory components of “Congress,” such that
the absence of either divests the term of its substantive meaning
as expressed under the Constitution. Bicameralism, as the system
of choice by the Framers, requires that both houses exercise their
respective powers in the performance of its mandated duty which
is to legislate. Thus, when Section 8(1), Article VIII of the
Constitution speaks of “a representative from Congress,” it should
mean one representative each from both Houses which comprise
the entire Congress.
Issue:
1. Are the conditions sine qua non for the exercise of the power of
judicial review have been met in this case?
2. Is the JBC’s practice of having members from the Senate and
the House of Representatives making 8 instead of 7 sitting
members unconstitutional?
3. What is the effect of the Court's finding that the current
composition of the JBC is unconstitutional?
Held:
1. Yes. The Courts’ power of judicial review is subject to several
limitations, namely: (a) there must be an actual case or controversy
calling for the exercise of judicial power; (b) the person challenging
the act must have “standing” to challenge; he must have a personal
and substantial interest in the case, such that he has sustained or
will sustain, direct injury as a result of its enforcement; (c) the
question of constitutionality must be raised at the earliest possible
opportunity; and (d) the issue of constitutionality must be the very
lis mota of the case. Generally, a party will be allowed to litigate
only when these conditions sine qua non are present, especially
when the constitutionality of an act by a co-equal branch of
government is put in issue.
The Court disagrees with the respondents’ contention that
petitioner lost his standing to sue because he is not an official
nominee for the post of Chief Justice. While it is true that a
“personal stake” on the case is imperative to have locus standi, this
is not to say that only official nominees for the post of Chief Justice
can come to the Court and question the JBC composition for being
unconstitutional. The JBC likewise screens and nominates other
members of the Judiciary. Albeit heavily publicized in this regard,
the JBC’s duty is not at all limited to the nominations for the highest
magistrate in the land. A vast number of aspirants to judicial posts
all over the country may be affected by the Court’s ruling. More
importantly, the legality of the very process of nominations to the
positions in the Judiciary is the nucleus of the controversy. The
claim that the composition of the JBC is illegal and unconstitutional
is an object of concern, not just for a nominee to a judicial post, but
for all citizens who have the right to seek judicial intervention for
rectification of legal blunders.
2. Section 8, Article VIII of the 1987 Constitution provides:
Section 8. (1) A Judicial and Bar Council is hereby created under
the supervision of the Supreme Court composed of the Chief
Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a
representative of the Integrated Bar, a professor of law, a retired
Member of the Supreme Court, and a representative of the private
sector.
From a simple reading of the above-quoted provision, it can readily
be discerned that the provision is clear and unambiguous. The first
paragraph calls for the creation of a JBC and places the same
under the supervision of the Court. Then it goes to its composition
where the regular members are enumerated: a representative of
the Integrated Bar, a professor of law, a retired member of the
Court and a representative from the private sector. On the second
part lies the crux of the present controversy. It enumerates the ex
officio or special members of the JBC composed of the Chief
Justice, who shall be its Chairman, the Secretary of Justice and “a
representative of Congress.”
The use of the singular letter “a” preceding “representative of
Congress” is unequivocal and leaves no room for any other
construction. It is indicative of what the members of the
Constitutional Commission had in mind, that is, Congress may
designate only one (1) representative to the JBC. Had it been the
intention that more than one (1) representative from the legislature
would sit in the JBC, the Framers could have, in no uncertain terms,
so provided.
One of the primary and basic rules in statutory construction is that
where the words of a statute are clear, plain, and free from
ambiguity, it must be given its literal meaning and applied without
attempted interpretation. It is a well-settled principle of
constitutional construction that the language employed in the
Constitution must be given their ordinary meaning except where
technical terms are employed. As much as possible, the words of
the Constitution should be understood in the sense they have in
common use. What it says according to the text of the provision to
be construed compels acceptance and negates the power of the
courts to alter it, based on the postulate that the framers and the
people mean what they say. Verba legis non est recedendum –
from the words of a statute there should be no departure.
Applying the foregoing principle to this case, it becomes apparent
that the word “Congress” used in Article VIII, Section 8(1) of the
Constitution is used in its generic sense. No particular allusion
whatsoever is made on whether the Senate or the House of
Representatives is being referred to, but that, in either case, only a
singular representative may be allowed to sit in the JBC.
It is worthy to note that the seven-member composition of the JBC
serves a practical purpose, that is, to provide a solution should
there be a stalemate in voting. This underlying reason leads the
Court to conclude that a single vote may not be divided into half
(1/2), between two representatives of Congress, or among any of
the sitting members of the JBC for that matter. This unsanctioned
practice can possibly cause disorder and eventually muddle the
JBC’s voting process, especially in the event a tie is reached. The
aforesaid purpose would then be rendered illusory, defeating the
precise mechanism which the Constitution itself createdWhile it
would be unreasonable to expect that the Framers provide for
every possible scenario, it is sensible to presume that they knew
that an odd composition is the best means to break a voting
deadlock.
The respondents insist that owing to the bicameral nature of
Congress, the word “Congress” in Section 8(1), Article VIII of the
Constitution should be read as including both the Senate and the
House of Representatives. They theorize that it was so worded
because at the time the said provision was being drafted, the
Framers initially intended a unicameral form of Congress. Then,
when the Constitutional Commission eventually adopted a
bicameral form of Congress, the Framers, through oversight, failed
to amend Article VIII, Section 8 of the Constitution.
It is evident that the definition of “Congress” as a bicameral body
refers to its primary function in government – to legislate. In the
passage of laws, the Constitution is explicit in the distinction of the
role of each house in the process. The same holds true in
Congress’ non-legislative powers. An inter-play between the two
houses is necessary in the realization of these powers causing a
vivid dichotomy that the Court cannot simply discount. This,
however, cannot be said in the case of JBC representation
because no liaison between the two houses exists in the workings
of the JBC. Hence, the term “Congress” must be taken to mean the
entire legislative department.
3. As a general rule, an unconstitutional act is not a law; it confers
no rights; it imposes no duties; it affords no protection; it creates no
office; it is inoperative as if it has not been passed at all. This rule,
however, is not absolute. Under the doctrine of operative facts,
actions previous to the declaration of unconstitutionality are legally
recognized. They are not nullified. This is essential in the interest
of fair play.
The doctrine of operative fact, as an exception to the general rule,
only applies as a matter of equity and fair play. It nullifies the effects
of an unconstitutional law by recognizing that the existence of a
statute prior to a determination of unconstitutionality is an operative
fact and may have consequences which cannot always be ignored.
The past cannot always be erased by a new judicial declaration.
The doctrine is applicable when a declaration of unconstitutionality
will impose an undue burden on those who have relied on the
invalid law. Thus, it was applied to a criminal case when a
declaration of unconstitutionality would put the accused in double
jeopardy or would put in limbo the acts done by a municipality in
reliance upon a law creating it.3
Under the circumstances, the Court finds the exception applicable
in this case and holds that notwithstanding its finding of
unconstitutionality in the current composition of the JBC, all its prior
official actions are nonetheless valid. (Chavez vs. Judicial and Bar
Council, G.R. No. 202242, July 17, 2012)
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 202242 July 17, 2012
FRANCISCO I. CHAVEZ, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL, SEN. FRANCIS JOSEPH G.
ESCUDERO and REP. NIEL C. TUPAS, JR.,Respondents.
DECISION
MENDOZA, J.:
The issue at hand has been in hibernation until the unexpected
departure of Chief Justice Renato C. Corona on May 29, 2012, and
the nomination of former Solicitor General Francisco I. Chavez
(petitioner), as his potential successor, triggered the filing of this
case. The issue has constantly been nagging legal minds, yet
remained dormant for lack of constitutional challenge.
As the matter is of extreme urgency considering the constitutional
deadline in the process of selecting the nominees for the vacant
seat of the Chief Justice, the Court cannot delay the resolution of
the issue a day longer. Relegating it in the meantime to the back
burner is not an option.
Does the first paragraph of Section 8, Article VIII of the 1987
Constitution allow more than one (1) member of Congress to sit in
the JBC? Is the practice of having two (2) representatives from
each house of Congress with one (1) vote each sanctioned by the
Constitution? These are the pivotal questions to be resolved in this
original action for prohibition and injunction.
Long before the naissance of the present Constitution, the annals
of history bear witness to the fact that the exercise of appointing
members of the Judiciary has always been the exclusive
prerogative of the executive and legislative branches of the
government. Like their progenitor of American origins, both the
Malolos Constitution1 and the 1935 Constitution2 had vested the
power to appoint the members of the Judiciary in the President,
subject to confirmation by the Commission on Appointments. It was
during these times that the country became witness to the
deplorable practice of aspirants seeking confirmation of their
appointment in the Judiciary to ingratiate themselves with the
members of the legislative body.3
Then, with the fusion of executive and legislative power under the
1973 Constitution,4 the appointment of judges and justices was no
longer subject to the scrutiny of another body. It was absolute,
except that the appointees must have all the qualifications and
none of the disqualifications.
Prompted by the clamor to rid the process of appointments to the
Judiciary from political pressure and partisan activities, 5 the
members of the Constitutional Commission saw the need to create
a separate, competent and independent body to recommend
nominees to the President. Thus, it conceived of a body
representative of all the stakeholders in the judicial appointment
process and called it the Judicial and Bar Council (JBC). Its
composition, term and functions are provided under Section 8,
Article VIII of the Constitution, viz:
Section 8. (1) A Judicial and Bar Council is hereby created under
the supervision of the Supreme Court composed of the Chief
Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a
representative of the Integrated Bar, a professor of law, a retired
Member of the Supreme Court, and a representative of the private
sector.
(2) The regular members of the Council shall be appointed by the
President for a term of four years with the consent of the
Commission on Appointments. Of the Members first appointed, the
representative of the Integrated Bar shall serve for four years, the
professor of law for three years, the retired Justice for two years,
and the representative of the private sector for one year.
(3) The Clerk of the Supreme Court shall be the Secretary ex officio
of the Council and shall keep a record of its proceedings.
(4) The regular Members of the Council shall receive such
emoluments as may be determined by the Supreme Court. The
Supreme Court shall provide in its annual budget the
appropriations for the Council.
(5) The Council shall have the principal function of recommending
appointees to the Judiciary. It may exercise such other functions
and duties as the Supreme Court may assign to it.
In compliance therewith, Congress, from the moment of the
creation of the JBC, designated one representative to sit in the JBC
to act as one of the ex officio members.6 Perhaps in order to give
equal opportunity to both houses to sit in the exclusive body, the
House of Representatives and the Senate would send alternate
representatives to the JBC. In other words, Congress had only one
(1) representative.
In 1994, the composition of the JBC was substantially altered.
Instead of having only seven (7) members, an eighth (8th) member
was added to the JBC as two (2) representatives from Congress
began sitting in the JBC - one from the House of Representatives
and one from the Senate, with each having one-half (1/2) of a
vote.7 Then, curiously, the JBC En Banc, in separate meetings held
in 2000 and 2001, decided to allow the representatives from the
Senate and the House of Representatives one full vote each. 8 At
present, Senator Francis Joseph G. Escudero and Congressman
Niel C. Tupas, Jr. (respondents) simultaneously sit in the JBC as
representatives of the legislature.
It is this practice that petitioner has questioned in this
petition,9 setting forth the following
GROUNDS FOR ALLOWANCE OF THE PETITION
I
Article VIII, Section 8, Paragraph 1 is clear, definite and
needs no interpretation in that the JBC shall have only one
representative from Congress.
II
The framers of the Constitution clearly envisioned,
contemplated and decided on a JBC composed of only
seven (7) members.
III
Had the framers of the Constitution intended that the JBC
composed of the one member from the Senate and one
member from the House of Representatives, they could
have easily said so as they did in the other provisions of
the Constitution.
IV
The composition of the JBC providing for three ex-officio
members is purposely designed for a balanced
representation of each of the three branches of the
government.
V
One of the two (2) members of the JBC from Congress
has no right (not even ½ right) to sit in the said
constitutional body and perform the duties and functions
of a member thereof.
VI
The JBC cannot conduct valid proceedings as its
composition is illegal and unconstitutional.10
On July 9, 2012, the JBC filed its Comment. 11 It, however,
abstained from recommending on how this constitutional issue
should be disposed in gracious deference to the wisdom of the
Court. Nonetheless, the JBC was more than generous enough to
offer the insights of various personalities previously connected with
it.12
Through the Office of the Solicitor General (OSG), respondents
defended their position as members of the JBC in their
Comment13 filed on July 12, 2012. According to them, the crux of
the controversy is the phrase "a representative of
Congress."14 Reverting to the basics, they cite Section 1, Article VI
of the Constitution15 to determine the meaning of the term
"Congress." It is their theory that the two houses, the Senate and
the House of Representatives, are permanent and mandatory
components of "Congress," such that the absence of either divests
the term of its substantive meaning as expressed under the
Constitution. In simplistic terms, the House of Representatives,
without the Senate and vice-versa, is not
Congress.16 Bicameralism, as the system of choice by the Framers,
requires that both houses exercise their respective powers in the
performance of its mandated duty which is to legislate. Thus, when
Section 8(1), Article VIII of the Constitution speaks of "a
representative from Congress," it should mean one representative
each from both Houses which comprise the entire Congress.17
Tracing the subject provision’s history, the respondents claim that
when the JBC was established, the Framers originally envisioned
a unicameral legislative body, thereby allocating "a representative
of the National Assembly" to the JBC. The phrase, however, was
not modified to
aptly jive with the change to bicameralism, the legislative system
finally adopted by the Constitutional Commission on July 21, 1986.
According to respondents, if the Commissioners were made aware
of the consequence of having a bicameral legislature instead of a
unicameral one, they would have made the corresponding
adjustment in the representation of Congress in the JBC.18
The ambiguity having resulted from a plain case of inadvertence,
the respondents urge the Court to look beyond the letter of the
disputed provision because the literal adherence to its language
would produce absurdity and incongruity to the bicameral nature of
Congress.19 In other words, placing either of the respondents in the
JBC will effectively deprive a house of Congress of its
representation. In the same vein, the electorate represented by
Members of Congress will lose their only opportunity to participate
in the nomination process for the members of the Judiciary,
effectively diminishing the republican nature of the government. 20
The respondents further argue that the allowance of two (2)
representatives of Congress to be members of the JBC does not
render the latter’s purpose nugatory. While they admit that the
purpose in creating the JBC was to insulate appointments to the
Judiciary from political influence, they likewise cautioned the Court
that this constitutional vision did not intend to entirely preclude
political factor in said appointments. Therefore, no evil should be
perceived in the current set-up of the JBC because two (2)
members coming from Congress, whose membership to certain
political parties is irrelevant, does not necessarily amplify political
partisanship in the JBC. In fact, the presence of two (2) members
from Congress will most likely provide balance as against the other
six (6) members who are undeniably presidential appointees.21
The Issues
In resolving the procedural and substantive issues arising from the
petition, as well as the myriad of counter-arguments proffered by
the respondents, the Court synthesized them into two:
(1) Whether or not the conditions sine qua non for the
exercise of the power of judicial review have been met in
this case; and
(2) Whether or not the current practice of the JBC to
perform its functions with eight (8) members, two (2) of
whom are members of Congress, runs counter to the
letter and spirit of the 1987 Constitution.
The Power of Judicial Review
In its Comment, the JBC submits that petitioner is clothed
with locus standi to file the petition, as a citizen and taxpayer, who
has been nominated to the position of Chief Justice.22
For the respondents, however, petitioner has no "real interest" in
questioning the constitutionality of the JBC’s current
composition.23 As outlined in jurisprudence, it is well-settled that
for locus standi to lie, petitioner must exhibit that he has been
denied, or is about to be denied, of a personal right or privilege to
which he is entitled. Here, petitioner failed to manifest his
acceptance of his recommendation to the position of Chief Justice,
thereby divesting him of a substantial interest in the controversy.
Without his name in the official list of applicants for the post, the
respondents claim that there is no personal stake on the part of
petitioner that would justify his outcry of unconstitutionality.
Moreover, the mere allegation that this case is of transcendental
importance does not excuse the waiver of the rule on locus standi,
because, in the first place, the case lacks the requisites therefor.
The respondents also question petitioner’s belated filing of the
petition.24 Being aware that the current composition of the JBC has
been in practice since 1994, petitioner’s silence for eighteen (18)
years show that the constitutional issue being raised before the
Court does not comply with the "earliest possible opportunity"
requirement.
Before addressing the above issues in seriatim, the Court deems it
proper to first ascertain the nature of the petition. 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.25
The Constitution as the subject matter, and the validity and
construction of Section 8 (1), Article VIII as the issue raised, the
petition should properly be considered as that which would result
in the adjudication of rights sans the execution process because
the only relief to be granted is the very declaration of the rights
under the document sought to be construed. It being so, the original
jurisdiction over the petition lies with the appropriate Regional Trial
Court (RTC). Notwithstanding the fact that only questions of law
are raised in the petition, an action for declaratory relief is not
among those within the original jurisdiction of this Court as provided
in Section 5, Article VIII of the Constitution.26
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.
The Courts’ power of judicial review, like almost all other powers
conferred by the Constitution, is subject to several limitations,
namely: (1) there must be an actual case or controversy calling for
the exercise of judicial power; (2) the person challenging the act
must have "standing" to challenge; he must have a personal and
substantial interest in the case, such that he has sustained or will
sustain, direct injury as a result of its enforcement; (3) the question
of constitutionality must be raised at the earliest possible
opportunity; and (4) the issue of constitutionality must be the very
lis mota of the case.27 Generally, a party will be allowed to litigate
only when these conditions sine qua non are present, especially
when the constitutionality of an act by a co-equal branch of
government is put in issue.
Anent locus standi, the question to be answered is this: does the
party possess a personal stake in the outcome of the controversy
as to assure that there is real, concrete and legal conflict of rights
and duties from the issues presented before the Court? In David v.
Macapagal-Arroyo,28 the Court summarized the rules on locus
standi as culled from jurisprudence. There, it was held that
taxpayers, voters, concerned citizens, and legislators may be
accorded standing to sue, provided that the following requirements
are met: (1) cases involve constitutional issues; (2) for taxpayers,
there must be a claim of illegal disbursement of public funds or that
the tax measure is unconstitutional; (3) for voters, there must be a
showing of obvious interest in the validity of the election law in
question; (4) for concerned citizens, there must be a showing that
the issues raised are of transcendental importance which must be
settled early; and (5) for legislators, there must be a claim that the
official action complained of infringes upon their prerogatives as
legislators.
In public suits, the plaintiff, representing the general public, asserts
a "public right" in assailing an allegedly illegal official action. The
plaintiff may be a person who is affected no differently from any
other person, and can be suing as a "stranger," or as a "citizen" or
"taxpayer." Thus, taxpayers have been allowed to sue where there
is a claim that public funds are illegally disbursed or that public
money is being deflected to any improper purpose, or that public
funds are wasted through the enforcement of an invalid or
unconstitutional law. Of greater import than the damage caused by
the illegal expenditure of public funds is the mortal wound inflicted
upon the fundamental law by the enforcement of an invalid
statute.29
In this case, petitioner seeks judicial intervention as a taxpayer, a
concerned citizen and a nominee to the position of Chief Justice of
the Supreme Court. As a taxpayer, petitioner invokes his right to
demand that the taxes he and the rest of the citizenry have been
paying to the government are spent for lawful purposes. According
to petitioner, "since the JBC derives financial support for its
functions, operation and proceedings from taxes paid, petitioner
possesses as taxpayer both right and legal standing to demand
that the JBC’s proceedings are not tainted with illegality and that its
composition and actions do not violate the Constitution." 30
Notably, petitioner takes pains in enumerating past actions that he
had brought before the Court where his legal standing was
sustained. Although this inventory is unnecessary to
establish locus standi because obviously, not every case before
the Court exhibits similar issues and facts, the Court recognizes
the petitioner’s right to sue in this case. Clearly, petitioner has the
legal standing to bring the present action because he has a
personal stake in the outcome of this controversy.
The Court disagrees with the respondents’ contention that
petitioner lost his standing to sue because he is not an official
nominee for the post of Chief Justice. While it is true that a
"personal stake" on the case is imperative to have locus standi, this
is not to say that only official nominees for the post of Chief Justice
can come to the Court and question the JBC composition for being
unconstitutional. The JBC likewise screens and nominates other
members of the Judiciary. Albeit heavily publicized in this regard,
the JBC’s duty is not at all limited to the nominations for the highest
magistrate in the land. A vast number of aspirants to judicial posts
all over the country may be affected by the Court’s ruling. More
importantly, the legality of the very process of nominations to the
positions in the Judiciary is the nucleus of the controversy. The
Court considers this a constitutional issue that must be passed
upon, lest a constitutional process be plagued by misgivings,
doubts and worse, mistrust. Hence, a citizen has a right to bring
this question to the Court, clothed with legal standing and at the
same time, armed with issues of transcendental importance to
society. The claim that the composition of the JBC is illegal and
unconstitutional is an object of concern, not just for a nominee to a
judicial post, but for all citizens who have the right to seek judicial
intervention for rectification of legal blunders.
With respect to the question of transcendental importance, it is not
difficult to perceive from the opposing arguments of the parties that
the determinants established in jurisprudence are attendant in this
case: (1) the character of the funds or other assets involved in the
case; (2) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government; and (3) the lack of any
other party with a more direct and specific interest in the questions
being raised.31 The allegations of constitutional violations in this
case are not empty attacks on the wisdom of the other branches of
the government. The allegations are substantiated by facts and,
therefore, deserve an evaluation from the Court. The Court need
not elaborate on the legal and societal ramifications of the issues
raised. It cannot be gainsaid that the JBC is a constitutional
innovation crucial in the selection of the magistrates in our judicial
system.
The Composition of the JBC
Central to the resolution of the foregoing petition is an
understanding of the composition of the JBC as stated in the first
paragraph of Section 8, Article VIII of the Constitution. It reads:
Section 8. (1) A Judicial and Bar Council is hereby created under
the supervision of the Supreme Court composed of the Chief
Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a
representative of the Integrated Bar, a professor of law, a retired
Member of the Supreme Court, and a representative of the private
sector.
From a simple reading of the above-quoted provision, it can readily
be discerned that the provision is clear and unambiguous. The first
paragraph calls for the creation of a JBC and places the same
under the supervision of the Court. Then it goes to its composition
where the regular members are enumerated: a representative of
the Integrated Bar, a professor of law, a retired member of the
Court and a representative from the private sector. On the second
part lies the crux of the present controversy. It enumerates the ex
officio or special members of the JBC composed of the Chief
Justice, who shall be its Chairman, the Secretary of Justice and "a
representative of Congress."
As petitioner correctly posits, the use of the singular letter "a"
preceding "representative of Congress" is unequivocal and leaves
no room for any other construction. It is indicative of what the
members of the Constitutional Commission had in mind, that is,
Congress may designate only one (1) representative to the JBC.
Had it been the intention that more than one (1) representative from
the legislature would sit in the JBC, the Framers could have, in no
uncertain terms, so provided.
One of the primary and basic rules in statutory construction is that
where the words of a statute are clear, plain, and free from
ambiguity, it must be given its literal meaning and applied without
attempted interpretation.32 It is a well-settled principle of
constitutional construction that the language employed in the
Constitution must be given their ordinary meaning except where
technical terms are employed. As much as possible, the words of
the Constitution should be understood in the sense they have in
common use. What it says according to the text of the provision to
be construed compels acceptance and negates the power of the
courts to alter it, based on the postulate that the framers and the
people mean what they say.33 Verba legis non est recedendum –
from the words of a statute there should be no departure.34
The raison d’ être for the rule is essentially two-fold: First, because
it is assumed that the words in which constitutional provisions are
couched express the objective sought to be attained;35 and second,
because the Constitution is not primarily a lawyer’s document but
essentially that of the people, in whose consciousness it should
ever be present as an important condition for the rule of law to
prevail. 36
Moreover, under the maxim noscitur a sociis, where a particular
word or phrase is ambiguous in itself or is equally susceptible of
various meanings, its correct construction may be made clear and
specific by considering the company of words in which it is founded
or with which it is associated.37 This is because a word or phrase in
a statute is always used in association with other words or phrases,
and its meaning may, thus, be modified or restricted by the
latter.38 The particular words, clauses and phrases should not be
studied as detached and isolated expressions, but the whole and
every part of the statute must be considered in fixing the meaning
of any of its parts and in order to produce a harmonious whole. A
statute must be so construed as to harmonize and give effect to all
its provisions whenever possible.39 In short, every meaning to be
given to each word or phrase must be ascertained from the context
of the body of the statute since a word or phrase in a statute is
always used in association with other words or phrases and its
meaning may be modified or restricted by the latter.
Applying the foregoing principle to this case, it becomes apparent
that the word "Congress" used in Article VIII, Section 8(1) of the
Constitution is used in its generic sense. No particular allusion
whatsoever is made on whether the Senate or the House of
Representatives is being referred to, but that, in either case, only a
singular representative may be allowed to sit in the JBC. The
foregoing declaration is but sensible, since, as pointed out by an
esteemed former member of the Court and consultant of the JBC
in his memorandum,40 "from the enumeration of the membership of
the JBC, it is patent that each category of members pertained to a
single individual only."41
Indeed, the spirit and reason of the statute may be passed upon
where a literal meaning would lead to absurdity, contradiction,
injustice, or defeat the clear purpose of the lawmakers. 42 Not any
of these instances, however, is present in the case at
bench. Considering that the language of the subject constitutional
provision is plain and unambiguous, there is no need to resort
extrinsic aids such as records of the Constitutional Commission.
Nevertheless, even if the Court should proceed to look into the
minds of the members of the Constitutional Commission, it is
undeniable from the records thereof that it was intended that the
JBC be composed of seven (7) members only. Thus:
MR. RODRIGO: Let me go to another point then.
On page 2, Section 5, there is a novel provision about the
appointments of members of the Supreme Court and judges of the
lower courts. At present it is the President who appoints them. If
there is a Commission on Appointments, then it is the President
with the confirmation of the Commission on Appointment. In this
proposal, we would like to establish a new office, a sort of a board
composed of seven members called the Judicial and Bar Council.
And while the President will still appoint the member of the
judiciary, he will be limited to the recommendees of this Council.
xxx xxx xxx
MR. RODRIGO. Of the seven members of the Judicial and Bar
Council, the President appoints four of them who are regular
members.
xxx xxx xxx
MR. CONCEPCION. The only purpose of the Committee is to
eliminate partisan politics.43
xxx xxx xxx
MR. RODRIGO. If my amendment is approved, then the provision
will be exactly the same as the provision in the 1935 Constitution,
Article VIII, Section 5.
xxx xxx xxx
If we do not remove the proposed amendment on the creation of
the Judicial and Bar Council, this will be a diminution of the
appointing power of the highest magistrate of the land, of the
President of the Philippines elected by all the Filipino people. The
appointing power will be limited by a group of seven people who
are not elected by the people but only appointed.
Mr. Presiding Officer, if this Council is created, there will be no
uniformity in our constitutional provisions on appointments. The
members of the Judiciary will be segregated from the rest of the
government. Even a municipal judge cannot be appointed by the
President except upon recommendation or nomination of the three
names by this Committee of seven people, commissioners of the
Commission on Elections, the COA and the Commission on Civil
Service…even ambassadors, generals of the Army will not come
under this restriction. Why are we going to segregate the Judiciary
from the rest of our government in the appointment of high-ranking
officials?
Another reason is that this Council will be ineffective. It will just
besmirch the honor of our President without being effective at all
because this Council will be under the influence of the President.
Four out of seven are appointees of the President and they can be
reappointed when their term ends. Therefore, they would be
kowtow the President. A fifth member is the Minister of Justice, an
alter ego of the President. Another member represents the
Legislature. In all probability, the controlling part in the legislature
belongs to the President and, therefore, this representative form
the National Assembly is also under the influence of the President.
And may I say, Mr. Presiding Officer, that event the Chief Justice
of the Supreme Court is an appointee of the President. So it is futile
he will be influence anyway by the President. 44 [Emphases
supplied]
At this juncture, it is worthy to note that the seven-member
composition of the JBC serves a practical purpose, that is, to
provide a solution should there be a stalemate in voting. This
underlying reason leads the Court to conclude that a single vote
may not be divided into half (1/2), between two representatives of
Congress, or among any of the sitting members of the JBC for that
matter. This unsanctioned practice can possibly cause disorder
and eventually muddle the JBC’s voting process, especially in the
event a tie is reached. The aforesaid purpose would then be
rendered illusory, defeating the precise mechanism which the
Constitution itself created. While it would be unreasonable to
expect that the Framers provide for every possible scenario, it is
sensible to presume that they knew that an odd composition is the
best means to break a voting deadlock.
The respondents insist that owing to the bicameral nature of
Congress, the word "Congress" in Section 8(1), Article VIII of the
Constitution should be read as including both the Senate and the
House of Representatives. They theorize that it was so worded
because at the time the said provision was being drafted, the
Framers initially intended a unicameral form of Congress.
Then, when the Constitutional Commission eventually adopted a
bicameral form of Congress, the Framers, through oversight, failed
to amend Article VIII, Section 8 of the Constitution.45 On this score,
the Court cites the insightful analysis of another member of the
Court and JBC consultant, retired Justice Consuelo Ynares-
Santiago.46 Thus:
A perusal of the records of the Constitutional Commission reveals
that the composition of the JBC reflects the Commission’s desire
"to have in the Council a representation for the major elements of
the community." xxx The ex-officio members of the Council consist
of representatives from the three main branches of government
while the regular members are composed of various stakeholders
in the judiciary. The unmistakeable tenor of Article VIII, Section
8(1) was to treat each ex-officio member as representing one
co-equal branch of government. xxxThus, the JBC was designed
to have seven voting members with the three ex-officio members
having equal say in the choice of judicial nominees.
xxx xxx xxx
No parallelism can be drawn between the representative of
Congress in the JBC and the exercise by Congress of its
legislative powers under Article VI and constituent powers
under Article XVII of the Constitution. Congress, in relation to
the executive and judicial branches of government, is
constitutionally treated as another co-equal branch of in the matter
of its representative in the JBC. On the other hand, the exercise of
legislative and constituent powers requires the Senate and House
of Representatives to coordinate and act as distinct bodies in
furtherance of Congress’ role under our constitutional
scheme. While the latter justifies and, in fact, necessitates the
separateness of the two houses of Congress as they relate
inter se, no such dichotomy need be made when Congress
interacts with the other two co-equal branches of government.
It is more in keeping with the co-equal nature of the three
governmental branches to assign the same weight to
considerations that any of its representatives may have
regarding aspiring nominees to the judiciary. The
representatives of the Senate and the House of
Representatives act as such for one branch and should not
have any more quantitative influence as the other branches in
the exercise of prerogatives evenly bestowed upon the
three. Sound reason and principle of equality among the three
branches support this conclusion. [Emphases and underscoring
supplied]
More than the reasoning provided in the above discussed rules of
constitutional construction, the Court finds the above thesis as the
paramount justification of the Court’s conclusion that "Congress,"
in the context of JBC representation, should be considered as one
body. It is evident that the definition of "Congress" as a bicameral
body refers to its primary function in government - to legislate.47 In
the passage of laws, the Constitution is explicit in the distinction of
the role of each house in the process. The same holds true in
Congress’ non-legislative powers such as, inter alia, the power of
appropriation,48 the declaration of an existence of a state of
war,49 canvassing of electoral returns for the President and Vice-
President,50 and impeachment.51 In the exercise of these powers,
the Constitution employs precise language in laying down the roles
which a particular house plays, regardless of whether the two
houses consummate an official act by voting jointly or separately.
An inter-play between the two houses is necessary in the
realization of these powers causing a vivid dichotomy that the Court
cannot simply discount. Verily, each house is constitutionally
granted with powers and functions peculiar to its nature and with
keen consideration to 1) its relationship with the other chamber;
and 2) in consonance with the principle of checks and balances, to
the other branches of government.
This, however, cannot be said in the case of JBC representation
because no liaison between the two houses exists in the workings
of the JBC. No mechanism is required between the Senate and the
House of Representatives in the screening and nomination of
judicial officers. Hence, the term "Congress" must be taken to
mean the entirelegislative department. A fortiori, a pretext of
oversight cannot prevail over the more pragmatic scheme which
the Constitution laid with firmness, that is, that the JBC has a seat
for a single representative of Congress, as one of the co-equal
branches of government.
Doubtless, the Framers of our Constitution intended to create a
JBC as an innovative solution in response to the public clamor in
favor of eliminating politics in the appointment of members of the
Judiciary.52 To ensure judicial independence, they adopted a
holistic approach and hoped that, in creating a JBC, the private
sector and the three branches of government would have an active
role and equal voice in the selection of the members of the
Judiciary.
Therefore, to allow the Legislature to have more quantitative
influence in the JBC by having more than one voice speak, whether
with one full vote or one-half (1/2) a vote each, would, as one
former congressman and member of the JBC put it, "negate the
principle of equality among the three branches of government
which is enshrined in the Constitution."53
To quote one former Secretary of Justice:
The present imbalance in voting power between the Legislative and
the other sectors represented in the JBC must be corrected
especially when considered vis-à-vis the avowed purpose for its
creation, i.e., to insulate the appointments in the Judiciary against
political influence. By allowing both houses of Congress to have a
representative in the JBC and by giving each representative one
(1) vote in the Council, Congress, as compared to the other
members of the JBC, is accorded greater and unwarranted
influence in the appointment of judges.54[Emphasis supplied]
It is clear, therefore, that the Constitution mandates that the JBC
be composed of seven (7) members only. Thus, any inclusion of
another member, whether with one whole vote or half (1/2) of it,
goes against that mandate. Section 8(1), Article VIII of the
Constitution, providing Congress with an equal voice with other
members of the JBC in recommending appointees to the Judiciary
is explicit. Any circumvention of the constitutional mandate should
not be countenanced for the Constitution is the supreme law of the
land. The Constitution is the basic and paramount law to which all
other laws must conform and to which all persons, including the
highest officials of the land, must defer. Constitutional doctrines
must remain steadfast no matter what may be the tides of time. It
cannot be simply made to sway and accommodate the call of
situations and much more tailor itself to the whims and caprices of
the government and the people who run it. 55 Hence, any act of the
government or of a public official or employee which is contrary to
the Constitution is illegal, null and void.
As to the effect of the Court’s finding that the current composition
of the JBC is unconstitutional, it bears mentioning that as a general
rule, an unconstitutional act is not a law; it confers no rights; it
imposes no duties; it affords no protection; it creates no office; it is
inoperative as if it has not been passed at all.56 This rule, however,
is not absolute. In the interest of fair play under the doctrine of
operative facts, actions previous to the declaration of
unconstitutionality are legally recognized. They are not nullified. In
Planters Products, Inc. v. Fertiphil Corporation,57the Court
explained:
The doctrine of operative fact, as an exception to the general rule,
only applies as a matter of equity and fair play.1âwphi1 It nullifies
the effects of an unconstitutional law by recognizing that the
existence of a statute prior to a determination of unconstitutionality
is an operative fact and may have consequences which cannot
always be ignored. The past cannot always be erased by a new
judicial declaration.
The doctrine is applicable when a declaration of unconstitutionality
will impose an undue burden on those who have relied on the
invalid law. Thus, it was applied to a criminal case when a
declaration of unconstitutionality would put the accused in double
jeopardy or would put in limbo the acts done by a municipality in
reliance upon a law creating it.
Considering the circumstances, the Court finds the exception
applicable in this case and holds that notwithstanding its finding of
unconstitutionality in the current composition of the JBC, all its prior
official actions are nonetheless valid.
At this point, the Court takes the initiative to clarify that it is not in a
position to determine as to who should remain as the sole
representative of Congress in the JBC. This is a matter beyond the
province of the Court and is best left to the determination of
Congress.
Finally, while the Court finds wisdom in respondents' contention
that both the Senate and the House of Representatives should be
equally represented in the JBC, the Court is not in a position to
stamp its imprimatur on such a construction at the risk of expanding
the meaning of the Constitution as currently worded. Needless to
state, the remedy lies in the amendment of this constitutional
provision. The courts merely give effect to the lawgiver's intent. The
solemn power and duty of the Court to interpret and apply the law
does not include the power to correct, by reading into the law what
is not written therein.
WHEREFORE, the petition is GRANTED. The current numerical
composition of the Judicial and Bar Council IS declared
UNCONSTITUTIONAL. The Judicial and Bar Council is hereby
enjoined to reconstitute itself so that only one ( 1) member of
Congress will sit as a representative in its proceedings, in
accordance with Section 8( 1 ), Article
VIII of the 1987 Constitution.
This disposition is immediately executory.
SO ORDERED.
FACTS:
Effective May 23, 2017, and for a period not exceeding 60 days,
President Rodrigo Roa Duterte issued Proclamation No. 216
declaring a state of martial law and suspending the privilege of the
writ of habeas corpus in the whole of Mindanao.
In accordance with Section 18, Article VII of the Constitution, the
President, on May 25, 2017, submitted to Congress a written
Report on the factual basis of Proclamation No. 216.
The Report pointed out that for decades, Mindanao has been
plagued with rebellion and lawless violence which only escalated
and worsened with the passing of time.
On May 23, 2017, as the President stated in his Report, the Maute
terrorist group took over a hospital in Marawi City; established
several checkpoints within the city; burned down certain
government and private facilities and inflicted casualties on the part
of Government forces; and started flying the flag of the Islamic
State of Iraq and Syria (ISIS) in several areas, thereby indicating a
removal of allegiance from the Philippine Government and their
capability to deprive the duly constituted authorities – the
President, foremost – of their powers and prerogatives.
The Report also highlighted the strategic location of Marawi City;
the role it plays in Mindanao, and the Philippines as a whole; and
the possible tragic repercussions once it falls under the control of
the lawless groups.
After the submission of the Report and the briefings, the Senate
declared that it found “no compelling reason to revoke
Proclamation 216.
The Lagman Group, the Cullamat Group and the Mohamad Group
petitioned the Supreme Court, questioning the factual basis of
President Duterte’s Proclamation of martial law.
ISSUES:
[1] W/N the petitions are the “appropriate proceeding” covered by
paragraph 3, Section 18, Article VII of the Constitution sufficient to
invoke the mode of review required by the Court;
[2] A. Is the President required to be factually correct or only not
arbitrary in his appreciation of facts? B. Is the President required to
obtain the favorable recommendation thereon bf the Secretary of
National Defense? C. Is the President is required to take into
account only the situation at the time of the proclamation, even if
subsequent events prove the situation to have not been accurately
reported?
[3] Is the power of this Court to review the sufficiency of the factual
basis of the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus is independent of the actual
actions that have been taken by Congress jointly or separately;
[4] W/N there were sufficient factual [basis] for the proclamation of
martial law or the suspension of the privilege of the writ of habeas
corpus; A. What are the parameters for review? B. Who has the
burden of proof? C. What is the threshold of evidence?
[5] Whether the exercise of the power of judicial review by this
Court involves the calibration of graduated powers granted the
President as Commander-in-Chief?
[6] W/N Proclamation No. 216 of 23 May 2017 may be considered,
vague and thus null and void: a. with its inclusion of “other rebel
groups;” or b. since it has no guidelines specifying its actual
operational parameters within the entire Mindanao region;
[7] W/N the armed hostilities mentioned in Proclamation No. 216
and in the Report of the President to Congress are sufficient bases:
a. for the existence of actual rebellion; or b. for a declaration of
martial law or the suspension of the privilege of the writ of habeas
corpus in the entire Mindanao region;
[8] W/N terrorism or acts attributable to terrorism are equivalent to
actual rebellion and the requirements of public safety sufficient to
declare martial law or suspend the privilege of the writ of habeas
corpus; and
[9] W/N nullifying Proclamation No. 216 of23 May 2017 will: A. have
the effect of recalling Proclamation No. 55 s. 2016; or B. also nullify
the acts of the President in calling out the armed forces to quell
lawless violence in Marawi and other parts of the Mindanao region.
RULING:
1. The Court agrees that the jurisdiction of this Court under the third
paragraph of Section 18, Article VII is sui generis. It is a special and
specific jurisdiction of the Supreme Court different from those
enumerated in Sections 1 and 5 of Article VIII. The phrase “in an
appropriate proceeding” appearing on the third paragraph of
Section 18, Article VII refers to any action initiated by a citizen for
the purpose of questioning the sufficiency of the factual basis of the
exercise of the Chief Executive’s emergency powers, as in these
cases. It could be denominated as a complaint, a petition, or a
matter to be resolved by the Court.
2. a.) In determining the sufficiency of the factual basis of the
declaration and/or the suspension, the Court should look into the
full complement or totality of the factual basis, and not piecemeal
or individually. Neither should the Court expect absolute
correctness of the facts stated in the proclamation and in the written
Report as the President could not be expected to verify the
accuracy and veracity of all facts reported to him due to the urgency
of the situation. To require him otherwise would impede the
process of his decision-making.
b.) The recommendation of the Defense Secretary is not a
condition for the declaration of martial law or suspension of the
privilege of the writ of habeas corpus. A plain reading of Section
18, Article VII of the Constitution shows that the President’s power
to declare martial law is not subject to any condition except for the
requirements of actual invasion or rebellion and that public safety
requires it. Besides, it would be contrary to common sense if the
decision of the President is made dependent on the
recommendation of his mere alter ego. Only on the President can
exercise of the powers of the Commander-in-Chief.
c.) As Commander-in-Chief, the President has the sole discretion
to declare martial law and/or to suspend the privilege of the writ of
habeas corpus, subject to the revocation of Congress and the
review of this Court. Since the exercise of these powers is a
judgment call of the President, the determination of this Court as to
whether there is sufficient factual basis for the exercise of such,
must be based only on facts or information known by or available
to the President at the time he made the declaration or suspension
which facts or information are found in the proclamation as well as
the written Report submitted by him to Congress. These may be
based on the situation existing at the time the declaration was
made or past events. As to how far the past events should be from
the present depends on the President.
3. The power of the Court to review the sufficiency of the factual
basis of the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus under Section 18, Article VII
of the 1987 Constitution is independent of the actions taken by
Congress.
The Court may strike down the presidential proclamation in an
appropriate proceeding filed by any citizen on the ground of lack
sufficient factual basis. On the other hand, Congress may revoke
the proclamation or suspension, which revocation shall not be set
aside by the President. The power to review by the Court and the
power to revoke by Congress are not only totally different but
likewise independent from each other although concededly, they
have the same trajectory, which is, the nullification of the
presidential proclamation.
4. The parameters for determining the sufficiency of factual basis
are as follows: l) actual rebellion or invasion; 2) public safety
requires it; the first two requirements must concur; and 3) there is
probable cause for the President to believe that there is actual
rebellion or invasion.
The President needs only to satisfy probable cause as the standard
of proof in determining the existence of either invasion or rebellion
for purposes of declaring martial law, and that probable cause is
the most reasonable, most practical and most expedient standard
by which the President can fully ascertain the existence or non-
existence of rebellion necessary for a declaration of martial law or
suspension of the writ. To require him to satisfy a higher standard
of proof would restrict the exercise of his emergency powers.
5. The judicial power to review the sufficiency of factual basis of the
declaration of martial law or the suspension of the privilege of the
writ of habeas corpus does not extend to the calibration of the
President’s decision of which among his graduated powers he will
avail of in a given situation. To do so would be tantamount to an
incursion into the exclusive domain of the Executive and an
infringement on the prerogative that solely, at least initially, lies with
the President.
6. a.) Inclusion of “other rebel groups ” does not make Proclamation
No. 216 vague. The term “other rebel groups” in Proclamation No.
216 is not at all vague when viewed in the context of the words that
accompany it. Verily, the text of Proclamation No. 216 refers to
“other rebel groups” found in Proclamation No. 55, which it cited by
way of reference in its Whereas clauses.
b.) Lack of guidelines/operational parameters does not make
Proclamation No. 216 vague. Operational guidelines will serve only
as mere tools for the implementation of the proclamation.
There is no need for the Court to determine the constitutionality of
the implementing and/or operational guidelines, general orders,
arrest orders and other orders issued after the proclamation for
being irrelevant to its review. Any act committed under the said
orders in violation of the Constitution and the laws should be
resolved in a separate proceeding. Finally, there is a risk that if the
Court wades into these areas, it would be deemed as trespassing
into the sphere that is reserved exclusively for Congress in the
exercise of its power to revoke.
7. There is sufficient factual basis for the declaration of martial law
and the suspension of the writ of habeas corpus. By a review of the
facts available to him that there was an armed public uprising, the
culpable purpose of which was to remove from the allegiance to
the Philippine Government a portion of its territory and to deprive
the Chief Executive of any of his power and prerogatives, leading
the President to believe that there was probable cause that the
crime of rebellion was and is being committed and that public safety
requires the imposition of martial law and suspension of the
privilege of the writ of habeas corpus.
After all, what the President needs to satisfy is only the standard of
probable cause for a valid declaration of martial law and
suspension of the privilege of the writ of habeas corpus.
8. Terrorism neither negates nor absorbs rebellion. Rebellion may
be subsumed under the crime of terrorism, which has a broader
scope covering a wide range of predicate crimes. In fact, rebellion
is only one of the various means by which terrorism can be
committed.
Meanwhile, public safety requires the declaration of martial law and
the suspension of the privilege of the writ of habeas corpus in the
whole of Mindanao. For a declaration of martial law or suspension
of the privilege of the writ of habeas corpus to be valid, there must
be concurrence of 1.) actual rebellion or invasion and 2.) the public
safety requirement.
In his report, the President noted that the acts of violence
perpetrated by the ASG and the Maute Group were directed not
only against government forces or establishment but likewise
against civilians and their properties. There were bomb threats,
road blockades, burning of schools and churches, hostages and
killings of civilians, forced entry of young male Muslims to the
group, there were hampering of medical services and delivery of
basic services, reinforcement of government troops, among others.
These particular scenarios convinced the President that the
atrocities had already escalated to a level that risked public safety
and thus impelled him to declare martial law and suspend the
privilege of the writ of habeas corpus.
9. a.) The calling out power is in a different category from the power
to declare martial law and the power to suspend the privilege of the
writ of habeas corpus; nullification of Proclamation No. 216 will not
affect Proclamation No. 55.
The President may exercise the power to call out the Armed Forces
independently of the power to suspend the privilege of the writ of
habeas corpus and to declare martial law. Even so, the Court’s
review of the President’s declaration of martial law and his calling
out the Armed Forces necessarily entails separate proceedings
instituted for that particular purpose.
b.) Neither would the nullification of Proclamation No. 216 result in
the nullification of the acts of the President done pursuant thereto.
Under the operative fact doctrine,” the unconstitutional statute is
recognized as an “operative fact” before it is declared
unconstitutional.
***
Verily, the Court upholds the validity of the declaration of martial
law and suspension of the privilege of the writ of habeas corpus in
the entire Mindanao region. The Court FINDS sufficient factual
bases for the issuance of Proclamation No. 216 and DECLARES it
as CONSTITUTIONAL. Accordingly, the consolidated Petitions are
hereby DISMISSED.
Political Law. Proclamation No. 216 declaring a state of martial
law and suspending the privilege of the writ of habeas corpus in the
whole of Mindanao. Paragraph 3, Section 18, Article VII of the
Constitution
Meaning of Locus Standi: “[T]he only requisite for standing to
challenge the validity of the suspension is that the challenger
be a citizen. He need not even be a taxpayer.
Sufficiency of factual basis of the proclamation of martial
law. A plain reading of the afore-quoted Section 18, Article VII
reveals that it specifically grants authority to the Court to determine
the sufficiency of the factual basis of the proclamation of martial
law or suspension of the privilege of the writ of habeas corpus.
The unique features of the third paragraph of Section 18,
Article VII clearly indicate that it should be treated as sui
generis separate and different from those enumerated in
Article VIII.
The President as the Commander-in-Chief wields the
extraordinary powers of: a) calling out the armed forces; b)
suspending the privilege of the writ of habeas corpus; and c)
declaring martial law. These powers may be resorted to only
under specified conditions.
Extraordinary powers of the President distinguished.
Among the three extraordinary powers, the calling out power
is the most benign and involves ordinary police action The
President may resort to this extraordinary power whenever it
becomes necessary to prevent or suppress lawless violence,
invasion, or rebellion. “[T]he power to call is fully
discretionary to the President;”the only limitations being that
he acts within permissible constitutional boundaries or in a
manner not constituting grave abuse of discretion.In fact,
“the actual use to which the President puts the armed forces
is x x x not subject to judicial review.”
The extraordinary powers of suspending the privilege of the
writ of habeas corpus and/or declaring martial law may be
exercised only when there is actual invasion or rebellion, and
public safety requires it. The 1987 Constitution imposed the
following limits in the exercise of these powers: “(1) a time
limit of sixty days; (2) review and possible revocation by
Congress; [and] (3) review and possible nullification by the
Supreme Court.”
The void-for-vagueness doctrine holds that a law is facially
invalid if “men of common intelligence must necessarily
guess at its meaning and differ as to its application.
Edcel Lagman et al. vs. President Roa Duterte et al. , G.R. No.
231658, July 4, 2017
Facts
President Rodrigo Roa Duterte issued Proclamation No.
216 declaring a state of martial law and suspending the privilege of
the writ of habeas corpus in the whole of Mindanao on May 23,1.
2017 for a period not exceeding 60 days.
The full text of Proclamation No. 216 reads as follows:
WHEREAS, Proclamation No. 55, series of 2016, was issued on
04 September 2016 declaring a state of national emergency on
account of lawless violence in Mindanao;
WHEREAS, Section 18, Article VII of the Constitution provides that
‘x x x In case of invasion or rebellion, when the public safety
requires it, he (the President) may, for a period not exceeding
sixty days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof under
martial law x x x’;
WHEREAS, Article 134 of the Revised Penal Code, as amended
by R.A. No. 6968, provides that ‘the crime of rebellion or
insurrection is committed by rising and taking arms against
the Government for the purpose of removing from the
allegiance to said Government or its laws, the territory of the
Republic of the Philippines or any part thereof, of any body of
land, naval or other armed forces, or depriving the Chief
Executive or the Legislature, wholly or partially, of any of their
powers or prerogatives’;
WHEREAS, part of the reasons for the issuance of Proclamation
No. 55 was the series of violent acts committed by the Maute
terrorist group such as the attack on the military outpost in
Butig, Lanao del Sur in February 2016, killing and wounding
several soldiers, and the mass jailbreak in Marawi City in
August 2016, freeing their arrested comrades and other
detainees;
WHEREAS, today 23 May 2017, the same Maute terrorist group
has taken over a hospital in Marawi City, Lanao del Sur,
established several checkpoints within the City, burned down
certain government and private facilities and inflicted casualties on
the part of Government forces, and started flying the flag of the
Islamic State of Iraq and Syria (ISIS) in several areas, thereby
openly attempting to remove from the allegiance to the Philippine
Government this part of Mindanao and deprive the Chief Executive
of his powers and prerogatives to enforce the laws of the land and
to maintain public order and safety in Mindanao, constituting the
crime of rebellion; and
WHEREAS, this recent attack shows the capability of the Maute
group and other rebel groups to sow terror, and cause death and
damage to property not only in Lanao del Sur but also in other parts
of Mindanao.
NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of
the Republic of the Philippines, by virtue of the powers vested in
me by the Constitution and by law, do hereby proclaim as follows:
SECTION 1. There is hereby declared a state of martial law in the
Mindanao group of islands for a period not exceeding sixty days,
effective as of the date hereof.
SECTION 2. The privilege of the writ of habeas corpus shall
likewise be suspended in the aforesaid area for the duration of the
state of martial law.
DONE in the Russian Federation, this 23rd day of May in the year
of our Lord, Two Thousand and Seventeen.
Three (3) Petitions were filed questioning the legality of the said
declaration, to wit:
A) G.R. No. 231658 (Lagman Petition)
On June 5, 2017, Representatives Edcel C. Lagman, Tomasito S.
Villarin, Gary C. Alejano, Emmanuel A. Billones, and Teddy
Brawner Baguilat, Jr. filed a Petition11 Under the Third Paragraph
of Section 18 of Article VII of the 1987 Constitution.
First, the Lagman Petition claims that the declaration of
martial law has no sufficient factual basis because there is no
rebellion or invasion in Marawi City or in any part of
Mindanao. It argues that acts of terrorism in Mindanao do not
constitute rebellion12 since there is no proof that its purpose is to
remove Mindanao or any part thereof from allegiance to the
Philippines, its laws, or its territory.1
Xxx xxx xxx
Second, the Lagman Petition claims that the declaration of martial
law has no sufficient factual basis because the President’s Report
contained “false, inaccurate, contrived and hyperbolic accounts”. 21
Third, the Lagman Petition claims that the declaration of martial
law has no sufficient factual basis since the President’s Report
mistakenly included the attack on the military outpost in Butig,
Lanao del Sur in February 2016, the mass jail break in Marawi City
in August 2016, the Zamboanga siege, the Davao market bombing,
the Mamasapano carnage and other bombing incidents in
Cotabato, Sultan Kudarat, and Basilan, as additional factual bases
for the proclamation of martial law. It contends that these events
either took place long before the conflict in Marawi City began, had
long been resolved, or with the culprits having already been
arrested.26
Fourth, the Lagman Petition claims that the declaration of martial
law has no sufficient factual basis considering that the President
acted alone and did not consult the military establishment or any
ranking official27 before making the proclamation.
Finally, the Lagman Petition claims that the President’s
proclamation of martial law lacks sufficient factual basis owing to
the fact that during the presentation before the Committee of the
 Whole of the House of Representatives, it was shown that the5.
military was even successful in pre-empting the ASG and the
Maute Group’s plan to take over Marawi City and other parts of
Mindanao; there was absence of any hostile plan by the Moro
Islamic Liberation Front; and the number of foreign fighters allied6.
with ISIS was “undetermined”28 which indicates that there are only
a meager number of foreign fighters who can lend support to the
Maute Group.29
1. B) G.R. No. 231771 (Cullamat Petition)
7.
The Cullamat Petition, “anchored on Section 18, Article VII” of the
Constitution, likewise seeks the nullification of Proclamation
No. 216 for being unconstitutional because it lacks sufficient
factual basis that there is rebellion in Mindanao and that8.
public safety warrants its declaration.
9.
1. C) G.R. No. 231774 (Mohamad Petition)
10.
The Mohamad Petition posits that martial law is a measure of last
resort and should be invoked by the President only after exhaustion
of less severe remedies. It contends that the extraordinary11.
powers of the President should be dispensed
sequentially, i.e., first, the power to call out the armed forces;
second, the power to suspend the privilege of the writ
of habeas corpus; and finally, the power to declare martial
law.48 It maintains that the President has no discretion to
choose which extraordinary power to use; moreover, his12.
choice must be dictated only by, and commensurate to, the
exigencies of the situation.
13. with its inclusion of “other rebel groups;” or
According to the Mohamad Petition, the factual situation in Marawi
is not so grave as to require the imposition of martial law.
14. since it has no guidelines specifying its actual
The OSG acknowledges that Section 18, Article VII of the
Constitution vests the Court with the authority or power to review
15.
the sufficiency of the factual basis of the declaration of martial law.
The OSG, however, posits that although Section 18, Article VII lays
the basis for the exercise of such authority or power, the same
constitutional provision failed to specify the vehicle, mode or
remedy through which the “appropriate proceeding” mentioned16.
therein may be resorted to. The OSG suggests that the
“appropriate proceeding” referred to in Section 18, Article VII may17.
be availed of using the vehicle, mode or remedy of
a certiorari petition, either under Section 1 or 5, of Article
VIII.61 Corollarily, the OSG maintains that the review power is not
mandatory, but discretionary only, on the part of the Court.62 The18.
Court has the discretion not to give due course to the petition.63
19. Whether or not nullifying Proclamation No. 216 of 23 May 2017
ISSUES
1. Whether or not the petitions docketed as G.R. Nos. 231658,20.
231771, and 231774 are the “appropriate proceeding” covered by
Paragraph 3, Section 18, Article VII of the Constitution sufficient to
invoke the mode of review required of this Court when a declaration21.
of martial law or the suspension of the privilege of the writ
of habeas corpus is promulgated;
2. Whether or not the President in declaring martial law and
suspending the privilege of the writ of habeas corpus:
3. is required to be factually correct or only not arbitrary in his
appreciation of facts;
1.
4. is required to obtain the favorable recommendation thereon of the
Secretary of National Defense;
is required to take into account only the situation at the time of the
proclamation, even if subsequent events prove the situation to
have not been accurately reported;
Whether or not the power of this Court to review the sufficiency of
the factual basis [of] the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus is
independent of the actual actions that have been taken by
Congress jointly or separately;
Whether or not there were sufficient factual [basis] for the
proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus;
What are the parameters for review?
Who has the burden of proof?
What is the threshold of evidence?
Whether the exercise of the power of judicial review by this Court
involves the calibration of graduated powers granted the President
as Commander-in-Chief, namely calling out powers, suspension of
the privilege of the writ of habeas corpus, and declaration of martial
law;
Whether or not Proclamation No. 216 of 23 May 2017 may be
considered vague and thus null and void:
operational parameters within the entire Mindanao region;
Whether or not the armed hostilities mentioned in Proclamation
No. 216 and in the Report of the President to Congress are
sufficient [bases]:
for the existence of actual rebellion; or
for a declaration of martial law or the suspension of the privilege
of the writ of habeas corpus in the entire Mindanao region;
Whether or not terrorism or acts attributable to terrorism are
equivalent to actual rebellion and the requirements of public
safety sufficient to declare martial law or suspend the privilege of
the writ of habeas corpus; and
will:
have the effect of recalling Proclamation No. 55 s. 2016; or
also nullify the acts of the President in calling out the armed
forces to quell lawless violence in Marawi and other parts of the
Mindanao region.
After the oral argument, the parties submitted their respective
memoranda and supplemental memoranda.
Ruling
Locus standi of petitioners.- Yes. Petitioners are citizens and
have locus standi
 One of the requisites for judicial review is locus standi, i.e., “the 1.
constitutional question is brought before [the Court] by a party
having the requisite ‘standing’ to challenge it.” As a general rule,
the challenger must have “a personal and substantial interest
in the case such that he has sustained, or will sustain, direct
injury as a result of its enforcement.”Over the years, there has
been a trend towards relaxation of the rule on legal standing, a
prime example of which is found in Section 18 of Article VII
which provides that any citizen may file the appropriate
proceeding to assail the sufficiency of the factual basis of
the declaration of martial law or the suspension of the
privilege of the writ of habeas corpus. “[T]he only requisite
for standing to challenge the validity of the suspension is
that the challenger be a citizen. He need not even be a
taxpayer.
Petitioners in the Cullamat Petition claim to be “suing in their
capacities as citizens of the Republic;” similarly, petitioners in the
Mohamad Petition all claim to be “Filipino citizens, all women, all
of legal [age], and residents of Marawi City”. In the Lagman
Petition, however, petitioners therein did not categorically 1.
mention that they are suing as citizens but merely referred to
themselves as duly elected Representatives. That they are
suing in their official capacities as Members of Congress
could have elicited a vigorous discussion considering the
issuance by the House of Representatives of House
Resolution No. 1050 expressing full support to President
Duterte and finding no reason to revoke Proclamation No.
216. By such resolution, the House of Representatives is
declaring that it finds no reason to review the sufficiency of the
factual basis of the martial law declaration, which is in direct
contrast to the views and arguments being espoused by the
petitioners in the Lagman Petition. Considering, however, the
trend towards relaxation of the rules on legal standing, as
well as the transcendental issues involved in the present
Petitions, the Court will exercise judicial self-restraint85 and
will not venture into this matter. After all, “the Court is not
entirely without discretion to accept a suit which does not satisfy
the requirements of a [bona fide] case or of standing.
Considerations paramount to [the requirement of legal standing]
could compel assumption of jurisdiction.” In any case, the Court 1.
can take judicial cognizance of the fact that petitioners in the
Lagman Petition are all citizens of the Philippines since
Philippine citizenship is a requirement for them to be elected
as representatives. We will therefore consider them as suing
in their own behalf as citizens of this country. Besides,
respondents did not question petitioners’ legal standing.
1. Whether or not the petitions are the “appropriate
proceeding” covered by paragraph 3, Section 18, Article VII
of the Constitution sufficient to invoke the mode of review
required by the Court.-YES
All three petitions beseech the cognizance of this Court
based on the third paragraph of Section 18, Article VII
(Executive Department) of the 1987 Constitution which
provides:
The Supreme Court may review, in an appropriate proceeding
filed by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of
the writ or the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.
During the oral argument, the petitioners theorized that the
jurisdiction of this Court under the third paragraph of Section
18, Article VII is sui generis. It is a special and specific
jurisdiction of the Supreme Court different from those
enumerated in Sections 1 and 5 of Article VIII.88
The Court agrees.
a) Jurisdiction must be specifically conferred by the
Constitution or by law.
It is settled that jurisdiction over the subject matter is
conferred only by the Constitution or by the law. Unless
jurisdiction has been specifically conferred by the
Constitution or by some legislative act, no body or tribunal
has the power to act or pass upon a matter brought before it
for resolution. It is likewise settled that in the absence of
a clear legislative intent, jurisdiction cannot be implied from the
language of the Constitution or a statute. It must appear clearly
from the law or it will not be held to exist.
A plain reading of the afore-quoted Section 18, Article VII
reveals that it specifically grants authority to the Court to
determine the sufficiency of the factual basis of the
proclamation of martial law or suspension of the privilege of
the writ of habeas corpus.
b) “In an appropriate proceeding” does not refer to a petition
for certiorari filed under Section 1 or 5 of Article VIII.
It could not have been the intention of the framers of the
Constitution that the phrase “in an appropriate proceeding” would
refer to a Petition for Certiorari pursuant to Section 1 or Section 5
of Article VIII. The standard of review in a petition
for certiorari is whether the respondent has committed any
grave abuse of discretion amounting to lack or excess of
jurisdiction in the performance of his or her functions. Thus,
it is not the proper tool to review the sufficiency of the
factual basis of the proclamation or suspension. It must be
emphasized that under Section 18, Article VII, the Court is tasked
to review the sufficiency of the factual basis of the President’s
exercise of emergency powers. Put differently, if this Court
applies the standard of review used in a petition for certiorari, the
same would emasculate its constitutional task under Section 18,
Article VII.
c) Purpose/ significance of Section 18, Article VII is to
constitutionalize the pre-Marcos martial law ruling in In the
Matter of the Petition for Habeas Corpus of Lansang.
The third paragraph of Section 18, Article VII was inserted by the
framers of the 1987 Constitution to constitutionalize the pre-
Marcos martiail law ruling of this Court in In the Matter of the
Petition for Habeas Corpus of Lansang, to wit: that the factual
basis of the declaration of martial law or the suspension of
the privilege of the writ of habeas corpus is not a political
question but precisely within the ambit of judicial review.
“In determining the meaning, intent, and purpose of a law or
constitutional provision, the history of the times out of which
it grew and to which it may be rationally supposed to bear
some direct relationship, the evils intended to be remedied,
and the good to be accomplished are proper subjects of
inquiry.” Fr. Joaquin G. Bernas, S.J. (Fr. Bernas), a member of
the Constitutional Commission that drafted the 1987 Constitution,
explained:
The Commander-in-Chief provisions of the 1935 Constitution had
enabled President Ferdinand Marcos to impose authoritarian rule
on the Philippines from 1972 to 1986. Supreme Court decisions
during that period upholding the actions taken by Mr. Marcos
made authoritarian rule part of Philippine constitutional
jurisprudence. The members of the Constitutional Commission,
very much aware of these facts, went about reformulating the
Commander-in-Chief powers with a view to dismantling what had
been constructed during the authoritarian years. The new formula
included revised grounds for the activation of emergency powers,
the manner of activating them, the scope of the powers, and
review of presidential action.94 (Emphasis supplied)
 To recall, the Court held in the 1951 case of Montenegro v.
Castaneda95 that the authority to decide whether there is a state
of rebellion requiring the suspension of the privilege of the writ
of habeas corpus is lodged with the President and his decision
thereon is final and conclusive upon the courts. This ruling was
reversed in the 1971 case of Lansang where it was held that
the factual basis of the declaration of martial law and the
suspension of the privilege of the writ of habeas corpus is
not a political question and is within the ambit of judicial
review.However, in 1983, or after the declaration of martial law by
former President Ferdinand E. Marcos, the Court, in Garcia-
Padilla v. Enrile, abandoned the ruling in Lansang and reverted
to Montenegro. According to the Supreme Court, the 1.
constitutional power of the President to suspend the privilege of
the writ of habeas corpus is not subject to judicial inquiry.
Thus, by inserting Section 18 in Article VII which allows
judicial review of the declaration of martial law and
suspension of the privilege of the writ of habeas corpus, the
framers of the 1987 Constitution in effect constitutionalized
and reverted to the Lansang doctrine.
1. d) Purpose of Section 18, Article VII is to provide additional
safeguard against possible abuse by the President on the
exercise of the extraordinary powers.
1.
Section 18, Article VII is meant to provide additional
safeguard against possible abuse by the President in the
exercise of his power to declare martial law or suspend the
privilege of the writ of habeas corpus. Reeling from the
aftermath of the Marcos martial law, the framers of the
Constitution deemed it wise to insert the now third paragraph of
Section 18 of Article VII. This is clear from the records of the
Constitutional Commission when its members were deliberating
on whether the President could proclaim martial law even without
the concurrence of Congress.
1. e) Purpose of Section 18, Article VII is to curtail the extent of
the powers of the President. 1.
The most important objective, however, of Section 18, Article VII
is the curtailment of the extent of the powers of the
Commander-in-Chief. This is the primary reason why the
provision was not placed in Article VIII or the Judicial Department
but remained under Article VII or the Executive Department.
During the closing session of the Constitutional Commission’s
deliberations, President Cecilia Munoz Palma expressed her
sentiments on the 1987 Constitution. She said:
The executive power is vested in the President of the Philippines
elected by the people for a six-year term with no reelection for the
duration of his/her life. While traditional powers inherent in the
office of the President are granted, nonetheless for the first
time, there are specific provisions which curtail the extent of
such powers. Most significant is the power of the Chief
Executive to suspend the privilege of the writ of habeas
corpus or proclaim martial law.
The flagrant abuse of that power of the Commander-in-Chief by
Mr. Marcos caused the imposition of martial law for more than
eight years and the suspension of the privilege of the writ even
after the lifting of martial law in 1981. The new Constitution now
provides that those powers can be exercised only in two cases,
invasion or rebellion when public safety demands it, only for a
period not exceeding 60 days, and reserving to Congress the
power to revoke such suspension or proclamation of martial law
which congressional action may not be revoked by the President.
More importantly, the action of the President is made subject to
judicial review, thereby again discarding jurisprudence which
render[s] the executive action a political question and beyond the
jurisdiction of the courts to adjudicate.
For the first time, there is a provision that the state of martial law
does not suspend the operation of the Constitution nor abolish
civil courts or legislative assemblies, or vest jurisdiction to military
tribunals over civilians, or suspend the privilege of the writ. Please
forgive me if, at this point, I state that this constitutional provision
vindicates the dissenting opinions I have written during my tenure
in the Supreme Court in the martial law cases.101
f) To interpret “appropriate proceeding” as filed under
Section 1 of Article VIII would be contrary to the intent of the
Constitution.
To conclude that the “appropriate proceeding” refers to a Petition
for Certiorari filed under the expanded jurisdiction of this Court
would, therefore, contradict the clear intention of the framers of
the Constitution to place additional safeguards against possible
martial law abuse for, invariably, the third paragraph of Section
18, Article VII would be subsumed under Section 1 of Article VIII.
In other words, the framers of the Constitution added the
safeguard under the third paragraph of Section 18, Article VII on
top of the expanded jurisdiction of this Court.
g) Jurisdiction of the Court is not restricted to those
enumerated in Sections 1 and 5 of Article VIII.
The jurisdiction of this Court is not restricted to those enumerated
in Sections 1 and 5 of Article VIII. For instance, its jurisdiction to
be the sole judge of all contests relating to the election, returns,
and qualifications of the President or Vice-President can be found
in the last paragraph of Section 4, Article VII.102 The power of the
Court to review on certiorari the decision, order, or ruling of the
Commission on Elections and Commission on Audit can be found
in Section 7, Article IX(A).
h) Unique features of the third paragraph of Section 18,
Article VII make it sui generis.
The unique features of the third paragraph of Section 18,
Article VII clearly indicate that it should be treated as sui
generis separate and different from those enumerated in
Article VIII.Under the third paragraph of Section 18, Article VII, a
petition filed pursuant therewith will follow a different rule on
standing as any citizen may file it. Said provision of the
Constitution also limits the issue to the sufficiency of the factual
basis of the exercise by the Chief Executive of his emergency
powers. The usual period for filing pleadings in Petition
for Certiorari is likewise not applicable under the third paragraph
of Section 18, Article VII considering the limited period within
which this Court has to promulgate its decision.
A proceeding “[i]n its general acceptation, [is] the form in which
actions are to be brought and defended, the manner of
intervening in suits, of conducting them, the mode of deciding
them, of opposing judgments, and of executing.” In fine, the
phrase “in an appropriate proceeding” appearing on the third
paragraph of Section 18, Article VII refers to any action initiated
by a citizen for the purpose of questioning the sufficiency of the
factual basis of the exercise of the Chief Executive’s emergency
powers, as in these cases. It could be denominated as a
complaint, a petition, or a matter to be resolved by the Court.
III. The power of the Court to review the sufficiency of the
factual basis of the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus
under Section 18, Article VII of the 1987 Constitution is
independent of the actions taken by Congress.
 During the oral argument,the OSG urged the Court to give
deference to the actions of the two co-equal branches of the
Government: on the part of the President as Commander-in-
Chief, in resorting to his extraordinary powers to declare martial
law and suspend the privilege of the writ of habeas corpus; and
on the part of Congress, in giving its imprimatur to Proclamation
No. 216 and not revoking the same.
The framers of the 1987 Constitution reformulated the scope of
the extraordinary powers of the President as Commander-in-Chief
and the review of the said presidential action. In particular, the
President’s extraordinary powers of suspending the privilege of
the writ of habeas corpus and imposing martial law are subject to
the veto powers of the Court and Congress.
1. a) The judicial power to review versus the congressional
power to revoke.
The Court may strike down the presidential proclamation in an
appropriate proceeding filed by any citizen on the ground of lack
of sufficient factual basis. On the other hand, Congress may
revoke the proclamation or suspension, which revocation shall not
be set aside by the President.
In reviewing the sufficiency of the factual basis of the
proclamation or suspension, the Court considers only the
information and data available to the President prior to or at the
time of the declaration; it is not allowed to “undertake an
independent investigation beyond the pleadings.” On the other
hand, Congress may take into consideration hot only data
available prior to, but likewise events supervening the declaration.
Unlike the Court which does not look into the absolute
correctness of the factual basis as will be discussed below,
Congress could probe deeper and further; it can delve into the
accuracy of the facts presented before it.
In addition, the Court’s review power is passive; it is only initiated
by the filing of a petition “in an appropriate proceeding” by a
citizen. On the other hand, Congress’ review mechanism is
automatic in the sense that it may be activated by Congress itself
at any time after the proclamation or suspension was made.
Thus, the power to review by the Court and the power to revoke
by Congress are not only totally different but likewise independent
from each other although concededly, they have the same
trajectory, which is, the nullification of the presidential
proclamation. Needless to say, the power of the Court to review
can be exercised independently from the power of revocation of
Congress. 1.
1. b) The framers of the 1987 Constitution intended the judicial
power to review to be exercised independently from the
congressional power to revoke.
If only to show that the intent of the framers of the 1987
Constitution was to vest the Court and Congress with veto powers
independently from each other, we quote the following exchange:
1. QUESADA. Yesterday, the understanding of many was that there
would be safeguards that Congress will be able to revoke such
proclamation.
2. RAMA. Yes.
3. QUESADA. But now, if they cannot meet because they have been1.
arrested or that the Congress has been padlocked, then who is
going to declare that such a proclamation was not warranted?
xxx
1. REGALADO. May I also inform Commissioner Quesada that the
judiciary is not exactly just standing by. A petition for a writ of
habeas corpus, if the Members are detained, can immediately be
applied for, and the Supreme Court shall also review the factual
basis. x x x107
2. c) Re-examination of the Court’s pronouncement in Fortun v.
President Macapagal-Arroyo.
Considering the above discussion, the Court finds it imperative to
reexamine, reconsider, and set aside its pronouncement in Fortun
v. President Macapagal-Arroyo to the effect that:
Consequently, although the Constitution reserves to the Supreme
Court the power to review the sufficiency of the factual basis of
the proclamation or suspension in a proper suit, it is implicit that
the Court must allow Congress to exercise its own review powers,
which is automatic rather than initiated. Only when Congress
defaults in its express duty to defend the Constitution through
such review should the Supreme Court step in as its final rampart.
The constitutional validity of the President’s proclamation of
martial law or suspension of the writ of habeas corpus is first a
political question in the hands of Congress before it becomes a
justiciable one in the hands of the Court.
xxx
If the Congress procrastinates or altogether fails to fulfill its duty
respecting the proclamation or suspension within the short time
expected of it, then the Court can step in, hear the petitions
challenging the President’s action, and ascertain if it has a factual
basis. x x x
By the above pronouncement, the Court willingly but unwittingly!
clipped its own power and surrendered the same to Congress as
well as abdicated from its bounden duty to review. Worse, the
Court considered itself just on stand-by, waiting and willing to act
as a substitute in case Congress “defaults.” It is an aberration, a
stray declaration, which must be rectified and set aside in this
proceeding.
We, therefore, hold that the Court can simultaneously exercise its
power of review with, and independently from, the power to
revoke by Congress. Corollary, any perceived inaction or default
on the part of Congress does not deprive or deny the Court of its
power to review.
The judicial power to review the sufficiency of factual basis
of the declaration of martial law or the suspension of the
privilege of the writ of habeas corpus does not extend to the
calibration of the President’s decision of which among his
graduated powers he will avail of in a given situation.
The President as the Commander-in-Chief wields the
extraordinary powers of: a) calling out the armed forces; b)
suspending the privilege of the writ of habeas corpus; and c)
declaring martial law. These powers may be resorted to only
under specified conditions.
The framers of the 1987 Constitution reformulated the powers of
the Commander-in-Chief by revising the “grounds for the
activation of emergency powers, the manner of activating them,
the scope of the powers, and review of presidential action.”
a) Extraordinary powers of the President distinguished.
Among the three extraordinary powers, the calling out power
is the most benign and involves ordinary police action The
President may resort to this extraordinary power whenever it
 becomes necessary to prevent or suppress lawless violence,
invasion, or rebellion. “[T]he power to call is fully
discretionary to the President;”the only limitations being that
he acts within permissible constitutional boundaries or in a
manner not constituting grave abuse of discretion.In fact,
“the actual use to which the President puts the armed forces
is x x x not subject to judicial review.”
The extraordinary powers of suspending the privilege of the
writ of habeas corpus and/or declaring martial law may be 1.
exercised only when there is actual invasion or rebellion, and
public safety requires it. The 1987 Constitution imposed the
following limits in the exercise of these powers: “(1) a time
limit of sixty days; (2) review and possible revocation by
Congress; [and] (3) review and possible nullification by the
Supreme Court.”
The framers of the 1987 Constitution eliminated insurrection,
and the phrase “imminent danger thereof” as grounds for the
suspension of the privilege of the writ of habeas corpus or
declaration of martial law. They perceived the phrase
“imminent danger” to be “fraught with possibilities
of abuse;”besides, the calling out power of the President “is
sufficient for handling imminent danger.” 2.
The powers to declare martial law and to suspend the
privilege of the writ of habeas corpus involve curtailment and 3.
suppression of civil rights and individual freedom. Thus, the
declaration of martial law serves as a warning to citizens that
the Executive Department has called upon the military to 4.
assist in the maintenance of law and order, and while the
emergency remains, the citizens must, under pain of arrest
and punishment, not act in a manner that will render it more 5.
difficult to restore order and enforce the law.As such, their
exercise requires more stringent safeguards by the
Congress, and review by the Court.
1. b) What really happens during martial law?
During the oral argument, the following questions cropped up:
What really happens during the imposition of martial law? What
powers could the President exercise during martial law that he
could not exercise if there is no martial law? Interestingly, these
questions were also discussed by the framers of the 1987
Constitution, viz.:
1. BERNAS. That same question was asked during the meetings of
the Committee: What precisely does martial law add to the power
of the President to call on the armed forces? The first and second
lines in this provision state:
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts
or legislative assemblies…
The provision is put there, precisely, to reverse the doctrine
of the Supreme Court. I think it is the case of Aquino v.
COMELEC where the Supreme Court said that in times of
martial law, the President automatically has legislative
power. So these two clauses denied that. A state of martial
law does not suspend the operation of the Constitution;
therefore, it does not suspend the principle of separation of
powers.
The question now is: During martial law, can the President issue
decrees? The answer we gave to that question in the Committee
was: During martial law, the President may have the powers
of a commanding general in a theatre of war. In actual war
when there is fighting in an area, the President as the
commanding general has the authority to issue orders which
have the effect of law but strictly in a theater of war, not in
the situation we had during the period of martial law. In other
words, there is an effort here to return to the traditional
concept of martial law as it was developed especially in
American jurisprudence, where martial law has reference to
the theater of war.
xxx
BERNAS. This phrase was precisely put here because we have
clarified the meaning of martial law; meaning, limiting it to martial
law as it has existed in the jurisprudence in international law, that
it is a law for the theater of war. In a theater of war, civil courts
are unable to function. If in the actual theater of war civil
courts, in fact, are unable to function, then the military
commander is authorized to give jurisdiction even over
civilians to military courts precisely because the civil courts
are closed in that area. But in the general area where the civil
courts are open then in no case can the military courts be
given jurisdiction over civilians. This is in reference to a
theater of war where the civil courts, in fact, are unable to
function.
FOZ. It is a state of things brought about by the realities of the
situation in that specified critical area.
BERNAS. That is correct.
FOZ. And it is not something that is brought about by a
declaration of the Commander-in-Chief.
BERNAS. It is not brought about by a declaration of the
Commander-in-Chief. The understanding here is that the phrase
‘nor authorize the conferment of jurisdiction on military courts and
agencies over civilians’ has reference to the practice under the
Marcos regime where military courts were given jurisdiction over
civilians. We say here that we will never allow that except in areas
where civil courts are, in fact, unable to function and it becomes
necessary for some kind of court to function.
A state of martial law is peculiar because the President, at
such a time, exercises police power, which is normally a
function of the Legislature. In particular, the President
exercises police power, with the military’s assistance, to
ensure public safety and in place of government agencies
which for the time being are unable to cope with the
condition in a locality, which remains under the control of the
State.
In David v. President Macapagal-Arroyo, the Court, quoting
Justice Vicente V. Mendoza’s (Justice Mendoza) Statement
before the Senate Committee on Justice on March 13, 2006,
stated that under a valid declaration of martial law, the President
as Commander-in-Chief may order the “(a) arrests and seizures
without judicial warrants; (b) ban on public assemblies; (c)
[takeover] of news media and agencies and press censorship;
and (d) issuance of Presidential Decrees x x x”.
Worthy to note, however, that the above-cited acts that the
President may perform do not give him unbridled discretion
to infringe on the rights of civilians during martial law. This is
because martial law does not suspend the operation of the
Constitution, neither does it supplant the operation of civil
courts or legislative assemblies. Moreover, the guarantees
under the Bill of Rights remain in place during its pendency.
And in such instance where the privilege of the writof habeas
corpus is also suspended, such suspension applies only to
those judicially charged with rebellion or offenses connected
with invasion.
 Clearly, from the foregoing, while martial law poses the most
severe threat to civil liberties, the Constitution has
safeguards against the President’s prerogative to declare a
state of martial law.
1. c) “Graduation” of powers refers to hierarchy based on
scope and effect; it does not refer to a sequence, order, or
arrangement by which the Commander-in-Chief must adhere
to.
Indeed, the 1987 Constitution gives the “President, as 1.
Commander-in-Chief, a ‘sequence’ of ‘graduated power[s]’.
From the most to the least benign, these are: the calling out
power, the power to suspend the privilege of the writ
of habeas corpus, and the power to declare martial law.” It
must be stressed, however, that the graduation refers only to
hierarchy based on scope and effect. It does not in any
manner refer to a sequence, arrangement, or order which the
Commander-in-Chief must follow. This so-called “graduation
of powers” does not dictate or restrict the manner by which
the President decides which power to choose.
These extraordinary powers are conferred by the
Constitution with the President as Commander-in-Chief; it
therefore necessarily follows that the power and prerogative
to determine whether the situation warrants a mere exercise
of the calling out power; or whether the situation demands
suspension of the privilege of the writ of habeas corpus; or
whether it calls for the declaration of martial law, also lies, at 1.
least initially, with the President. The power to choose,
initially, which among these extraordinary powers to wield in
a given set of conditions is a judgment call on the part of the
President. As Commander-in-Chief, his powers are broad
enough to include his prerogative to address exigencies or
threats that endanger the government, and the very integrity
of the State.
It is thus beyond doubt that the power of judicial review does not
extend to calibrating the President’s decision pertaining to which
extraordinary power to avail given a set of facts or conditions. To
do so would be tantamount to an incursion into the exclusive
domain of the Executive and an infringement on the prerogative
that solely, at least initially, lies with the President.
1. d) The framers of the 1987 Constitution intended the
Congress not to interfere a priori in the decision-making
process of the President.
The elimination by the framers of the 1987 Constitution of the
requirement of prior concurrence of the Congress in the
initial imposition of martial law or suspension of the privilege
of the writ of habeas corpus further supports the conclusion
that judicial review does not include the calibration of the
President’s decision of which of his graduated powers will be
availed of in a given situation. Voting 28 to 12, the framers of 1.
the 1987 Constitution removed the requirement of
congressional concurrence in the first imposition of martial
law and suspension of the privilege.
1. e) The Court must similarly and necessarily refrain from
calibrating the President’s decision of which among his
extraordinary powers to avail given a certain situation or
condition.
It cannot be overemphasized that time is paramount in
situations necessitating the proclamation of martial law or
suspension of the privilege of the writ of habeas corpus. It
was precisely this time element that prompted the
Constitutional Commission to eliminate the requirement of
concurrence of the Congress in the initial imposition by the 1.
President of martial law or suspension of the privilege of the
writ of habeas corpus. Considering that the proclamation of
martial law or suspension of the privilege of the writ of habeas
corpus is now anchored on actual invasion or rebellion and when
public safety requires it, and is no longer under threat or in
imminent danger thereof, there is a necessity and urgency for the
President to act quickly to protect the country. The Court, as
Congress does, must thus accord the President the same leeway
by not wading into the realm that is reserved exclusively by the
Constitution to the Executive Department.
f) The recommendation of the Defense Secretary is not a
condition for the declaration of martial law or suspension of
the privilege of the writ of habeas corpus.
Even the recommendation of, or consultation with, the Secretary
of National Defense, or other high-ranking military officials, is not
a condition for the President to declare martial law. A plain
reading of Section 18, Article VII of the Constitution shows
that the President’s power to declare martial law is not
subject to any condition except for the requirements of
actual invasion or rebellion and that public safety requires it.
Besides, it would be contrary to common sense if the
decision of the President is made dependent on the
recommendation of his mere alter ego. Rightly so, it is only
on the President and no other that the exercise of the powers
of the Commander-in-Chief under Section 18, Article VII of
the Constitution is bestowed.
g) In any event, the President initially employed the most
benign action-the calling out power-before he declared
martial law and suspended the privilege of the writ of habeas
corpus.
At this juncture, it must be stressed that prior to Proclamation No.
216 or the declaration of martial law on May 23, 2017, the
President had already issued Proclamation No. 55 on September
4, 2016, declaring a state of national emergency on account of
lawless violence in Mindanao. This, in fact, is extant in the first
Whereas Clause of Proclamation No. 216. Based on the
foregoing presidential actions, it can be gleaned that although
there is no obligation or requirement on his part to use his
extraordinary powers on a graduated or sequential basis, still the
President made the conscious and deliberate effort to first employ
the most benign from among his extraordinary powers. As the
initial and preliminary step towards suppressing and preventing
the armed hostilities in Mindanao, the President decided to use
his calling out power first. Unfortunately, the situation did not
improve; on the contrary, it only worsened. Thus, exercising his
sole and exclusive prerogative, the President decided to
impose martial law and suspend the privilege of the writ
of habeas corpus on the belief that the armed hostilities in
Mindanao already amount to actual rebellion and public
safety requires it.
Whether or not Proclamation No. 216 may be considered
vague and thus void because of (a) its inclusion of “other
rebel groups”; and (b) the absence of any guideline
specifying its actual operational parameters within the entire
Mindanao region.-NO
Proclamation No. 216 is being facially challenged on the ground
of “vagueness” by the insertion of the phrase “other rebel
groups” in its Whereas Clause and for lack of available guidelines
specifying its actual operational parameters within the entire
Mindanao region, making the proclamation susceptible to broad
interpretation, misinterpretation, or confusion.
This argument lacks legal basis.
a) Void-for-vagueness doctrine.
The void-for-vagueness doctrine holds that a law is facially
invalid if “men of common intelligence must necessarily
guess at its meaning and differ as to its application.”
“[A] statute or act may be said to be vague when it lacks
comprehensible standards that men of common intelligence
must necessarily guess at its meaning and differ in its
application. [In such instance, the statute] is repugnant to the
Constitution in two respects: (1) it violates due process for
failure to accord persons, especially the parties targeted by
it, fair notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions
and becomes an arbitrary flexing of the Government
muscle.”
VII. The Scope of the Power to Review.
a) The scope of the power of
review under the 1987 Constitution
refers only to the determination of the
sufficiency of the factual basis of the
declaration of martial law and
suspension of the privilege of habeas
corpus.
To recall, the Court, in the case of In the Matter of the Petition for
Habeas Corpus of Lansang,160 which was decided under the 1935
Constitution,161 held that it can inquire into, within proper bounds,
whether there has been adherence to or compliance with the
constitutionally-imposed limitations on the Presidential power to
suspend the privilege of the writ of habeas
corpus.162 "Lansang limited the review function of the Court to a
very prudentially narrow test of arbitrariness." 163 Fr. Bernas
described the "proper bounds" in Lansang as follows:
What, however, are these 'proper bounds' on the power of the
courts? The Court first gave the general answer that its power
was 'merely to check - not to supplant - the Executive, or
to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power
vested in him or to determine the wisdom of his act. More
specifically, the Court said that its power was not 'even
comparable with its power over civil or criminal cases elevated
thereto by appeal...in which cases the appellate court has all the
powers of the courtof origin,' nor to its power of quasi-judicial
administrative decisions where the Court is limited to asking
whether 'there is some evidentiary basis' for the administrative
finding. Instead, the Court accepted the Solicitor General's
suggestion that it 'go no further than to satisfy [itself] not that the
President's decision is correct and that public safety was
endangered by the rebellion and justified the suspension of the
writ, but that in suspending the writ, the President did not act
arbitrarily.'164
Lansang, however, was decided under the 1935 Constitution. The
1987 Constitution, by providing only for judicial review based on
the determination of the sufficiency of the factual bases, has in
fact done away with the test of arbitrariness as provided
in Lansang.
b) The "sufficiency of factual
basis test".
Similarly, under the doctrine of contemporaneous construction,
the framers of the 1987 Constitution are presumed to know the
prevailing jurisprudence at the time they were drafting the
Constitution. Thus, the phrase "sufficiency of factual basis" in
Section 18, Article VII of the Constitution should be understood as
the only test for judicial review of the President's power to declare
martial law and suspend the privilege of the writ of habeas
corpus under Section 18, Article VII of the Constitution. The Court
does not need to satisfy itself that the President's decision is
correct, rather it only needs to determine whether the President's
decision had sufficient factual bases.
We conclude, therefore, that Section 18, Article VII limits the
scope of judicial review by the introduction of the "sufficiency of
the factual basis" test.
As Commander-in-Chief, the President has the sole discretion to
declare martial law and/or to suspend the privilege of the writ of
habeas corpus, subject to the revocation of Congress and the
review of this Court. Since the exercise of these powers is a
judgment call of the President, the determination of this Court as
to whether there is sufficient factual basis for the exercise of such,
must be based only on facts or information known by or available
to the President at the time he made the declaration or
suspension, which facts or information are found in the
proclamation as well as the written Report submitted by him to
Congress. These may be based on the situation existing at the
time the declaration was made or past events. As to how far the
past events should be from the present depends on the President.
Past events may be considered as justifications for the
declaration and/or suspension as long as these are connected or
related to the current situation existing at the time of the
declaration.
As to what facts must be stated in the proclamation and the
written Report is up to the President.165 As Commander-in-Chief,
he has sole discretion to determine what to include and what not
to include in the proclamation and the written Report taking into
account the urgency of the situation as well as national security.
He cannot be forced to divulge intelligence reports and
confidential information that may prejudice the operations and the
safety of the military.
Similarly, events that happened after the issuance of the
proclamation, which are included in the written report, cannot be
considered in determining the sufficiency of the factual basis of
the declaration of martial law and/or the suspension of the
privilege of the writ of habeas corpus since these happened after
the President had already issued the proclamation. If at all, they
may be used only as tools, guides or reference in the Court's
determination of the sufficiency of factual basis, but not as part or
component of the portfolio of the factual basis itself.
In determining the sufficiency of the factual basis of the
declaration and/or the suspension, the Court should look into the
full complement or totality of the factual basis, and not piecemeal
or individually. Neither should the Court expect absolute
correctness of the facts stated in the proclamation and in the
written Report as the President could not be expected to verify the
accuracy and veracity of all facts reported to him due to the
urgency of the situation. To require precision in the President's
appreciation of facts would unduly burden him and therefore
impede the process of his decision-making. Such a requirement
will practically necessitate the President to be on the ground to
confirm the correctness of the reports submitted to him within a
period that only the circumstances obtaining would be able to
dictate. Such a scenario, of course, would not only place the
President in peril but would also defeat the very purpose of the
grant of emergency powers upon him, that is, to borrow the words
of Justice Antonio T. Carpio in Fortun, to "immediately put an end
to the root cause of the emergency".166 Possibly, by the time the
President is satisfied with the correctness of the facts in his
possession, it would be too late in the day as the invasion or
rebellion could have already escalated to a level that is hard, if not
impossible, to curtail.
Besides, the framers of the 1987 Constitution considered
intelligence reports of military officers as credible evidence that
the President ca appraise and to which he can anchor his
judgment,167 as appears to be the case here.

At this point, it is wise to quote the pertinent portions of the

Dissenting Opinion of Justice Presbitero J. Velasco Jr. in Fortun:

President Arroyo cannot be blamed for relying upon the

information given to her by the Armed Forces of the Philippines
and the Philippine National Police, considering that the matter of
the supposed armed uprising was within their realm of
competence, and that a state of emergency has also been
declared in Central Mindanao to prevent lawless violence similar
to the 'Maguindanao massacre,' which may be an indication that
there is a threat to the public safety warranting a declaration of
martial law or suspension of the writ.

Certainly, the President cannot be expected to risk being too late

before declaring martial law or suspending the writ of habeas
corpus. The Constitution, as couched, does not require precision
in establishing the fact of rebellion. The President is called to act
as public safety requires.168

Corollary, as the President is expected to decide quickly on

whether there is a need to proclaim martial law even only on the
basis of intelligence reports, it is irrelevant, for purposes of the
Court's review, if subsequent events prove that the situation had
not been accurately reported to him.

After all, the Court's review is confined to the sufficiency, not

accuracy, of the information at hand during the declaration or
suspension; subsequent events do not have any bearing insofar
as the Court's review is concerned. In any event, safeguards
under Section 18, Article VII of the Constitution are in place to
cover such a situation, e.g., the martial law period is good only for
60 days; Congress may choose to revoke it even immediately
after the proclamation is made; and, this Court may investigate
the factual background of the declaration.169

Hence, the maxim falsus in uno, falsus in omnibus finds no

application in this case. Falsities of and/or inaccuracies in some of
the facts stated in the proclamation and the written report are not
enough reasons for the Court to invalidate the declaration and/or
suspension as long as there are other facts in the proclamation
and the written Report that support the conclusion that there is an
actual invasion or rebellion and that public safety requires the
declaration and/or suspension.

In sum, the Court's power to review is limited to the determination

of whether the President in declaring martial law and suspending
the privilege of the writ of habeas corpus had sufficient factual
basis. Thus, our review would be limited to an examination on
whether the President acted within the bounds set by the
Constitution, i.e., whether the facts in his possession prior to and
at the time of the declaration or suspension are sufficient for him
to declare martial law or suspend the privilege of the writ
of habeas corpus.