You are on page 1of 32

DE CASTRO VS.

JBC Prohibition under Section 15, Article VII does not apply to
appointments to fill a vacancy in the Supreme Court or to other
MARCH 28, 2013 ~ VBDIAZ appointments to the Judiciary.

ARTURO M. DE CASTRO vs. JUDICIAL AND BAR COUNCIL Two constitutional provisions are seemingly in conflict.
(JBC) and PRESIDENT GLORIA MACAPAGAL – ARROYO
G.R. No. 191002, March 17, 2010 The first, Section 15, Article VII (Executive Department), provides:
Section 15. Two months immediately before the next presidential
FACTS: The compulsory retirement of Chief Justice Reynato S. elections and up to the end of his term, a President or Acting
Puno by May 17, 2010 occurs just days after the coming President shall not make appointments, except temporary
presidential elections on May 10, 2010. appointments to executive positions when continued vacancies
therein will prejudice public service or endanger public safety.

These cases trace their genesis to the controversy that has arisen
from the forthcoming compulsory retirement of Chief Justice Puno The other, Section 4 (1), Article VIII (Judicial Department), states:
on May 17, 2010, or seven days after the presidential election. Section 4. (1). The Supreme Court shall be composed of a Chief
Under Section 4(1), in relation to Section 9, Article VIII, that Justice and fourteen Associate Justices. It may sit en banc or in its
“vacancy shall be filled within ninety days from the occurrence discretion, in division of three, five, or seven Members. Any
thereof” from a “list of at least three nominees prepared by the vacancy shall be filled within ninety days from the occurrence
Judicial and Bar Council for every vacancy.” Also considering that thereof.
Section 15, Article VII (Executive Department) of the Constitution
prohibits the President or Acting President from making Had the framers intended to extend the prohibition contained in
appointments within two months immediately before the next Section 15, Article VII to the appointment of Members of the
presidential elections and up to the end of his term, except Supreme Court, they could have explicitly done so. They could not
temporary appointments to executive positions when continued have ignored the meticulous ordering of the provisions. They would
vacancies therein will prejudice public service or endanger public have easily and surely written the prohibition made explicit in
safety. Section 15, Article VII as being equally applicable to the
appointment of Members of the Supreme Court in Article VIII itself,
The JBC, in its en banc meeting of January 18, 2010, unanimously most likely in Section 4 (1), Article VIII. That such specification was
agreed to start the process of filling up the position of Chief Justice. 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
Conformably with its existing practice, the JBC “automatically or Acting President’s term does not refer to the Members of the
considered” for the position of Chief Justice the five most senior of Supreme Court.
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. Had the framers intended to extend the prohibition contained in
Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura. Section 15, Article VII to the appointment of Members of the
However, the last two declined their nomination through letters Supreme Court, they could have explicitly done so. They could not
dated January 18, 2010 and January 25, 2010, respectively. have ignored the meticulous ordering of the provisions. They would
The OSG contends that the incumbent President may appoint the have easily and surely written the prohibition made explicit in
next Chief Justice, because the prohibition under Section 15, Section 15, Article VII as being equally applicable to the
Article VII of the Constitution does not apply to appointments in the appointment of Members of the Supreme Court in Article VIII itself,
Supreme Court. It argues that any vacancy in the Supreme Court most likely in Section 4 (1), Article VIII. That such specification was
must be filled within 90 days from its occurrence, pursuant to not done only reveals that the prohibition against the President or
Section 4(1), Article VIII of the Constitution; that had the framers Acting President making appointments within two months before
intended the prohibition to apply to Supreme Court appointments, the next presidential elections and up to the end of the President’s
they could have easily expressly stated so in the Constitution, or Acting President’s term does not refer to the Members of the
which explains why the prohibition found in Article VII (Executive Supreme Court.
Department) was not written in Article VIII (Judicial Department);
and that the framers also incorporated in Article VIII ample Section 14, Section 15, and Section 16 are obviously of the same
restrictions or limitations on the President’s power to appoint character, in that they affect the power of the President to appoint.
members of the Supreme Court to ensure its independence from The fact that Section 14 and Section 16 refer only to appointments
“political vicissitudes” and its “insulation from political pressures,” within the Executive Department renders conclusive that Section
such as stringent qualifications for the positions, the establishment 15 also applies only to the Executive Department. This conclusion
of the JBC, the specified period within which the President shall is consistent with the rule that every part of the statute must be
appoint a Supreme Court Justice. interpreted with reference to the context, i.e. that every part must
be considered together with the other parts, and kept subservient
A part of the question to be reviewed by the Court is whether the to the general intent of the whole enactment. It is absurd to assume
JBC properly initiated the process, there being an insistence from that the framers deliberately situated Section 15 between Section
some of the oppositors-intervenors that the JBC could only do so 14 and Section 16, if they intended Section 15 to cover all kinds of
once the vacancy has occurred (that is, after May 17, 2010). presidential appointments. If that was their intention in respect of
Another part is, of course, whether the JBC may resume its process appointments to the Judiciary, the framers, if only to be clear, would
until the short list is prepared, in view of the provision of Section have easily and surely inserted a similar prohibition in Article VIII,
4(1), Article VIII, which unqualifiedly requires the President to most likely within Section 4 (1) thereof.
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:
Republic of the Philippines (SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA;
SUPREME COURT WALDEN F. BELLO and LORETTA ANN P. ROSALES;
Manila WOMEN TRIAL LAWYERS ORGANIZATION OF THE
PHILIPPINES, represented by YOLANDA QUISUMBING-
EN BANC JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA
GANDIONCO-OLEDAN; MA. VERENA KASILAG-
VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE
G.R. No. 191002 March 17, 2010 JESUS; and GUINEVERE DE LEON. Intervenors.

ARTURO M. DE CASTRO, Petitioner, x - - - - - - - - - - - - - - - - - - - - - - -x


vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT
GLORIA MACAPAGAL - ARROYO, Respondents. G.R. No. 191342

x - - - - - - - - - - - - - - - - - - - - - - -x ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern


Luzon), and ATTY. ROLAND B. INTING (IBPGovernor-Eastern
Visayas), Petitioners,
G.R. No. 191032 vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
JAIME N. SORIANO, Petitioner,
vs. x - - - - - - - - - - - - - - - - - - - - - - -x
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
G.R. No. 191420
x - - - - - - - - - - - - - - - - - - - - - - -x
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
G.R. No. 191057 vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY
PHILIPPINE CONSTITUTION ASSOCIATION GLORIA MACAPAGAL-ARROYO, Respondents.
(PHILCONSA), Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
DECISION
x - - - - - - - - - - - - - - - - - - - - - - -x
BERSAMIN, J.:
A.M. No. 10-2-5-SC
The compulsory retirement of Chief Justice Reynato S. Puno by
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE May 17, 2010 occurs just days after the coming presidential
CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY, elections on May 10, 2010. Even before the event actually
ESTELITO P. MENDOZA, Petitioner, happens, it is giving rise to many legal dilemmas. May the
incumbent President appoint his successor, considering that
x - - - - - - - - - - - - - - - - - - - - - - -x 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
G.R. No. 191149 presidential elections and up to the end of his term, except
temporary appointments to executive positions when continued
JOHN G. PERALTA, Petitioner, vacancies therein will prejudice public service or endanger public
vs. safety? What is the relevance of Section 4 (1), Article VIII (Judicial
JUDICIAL AND BAR COUNCIL (JBC). Respondent. Department) of the Constitution, which provides that any vacancy
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; in the Supreme Court shall be filled within 90 days from the
ALFONSO V. TAN, JR.; NATIONAL UNION OF PEOPLE'S occurrence thereof, to the matter of the appointment of his
LAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF THE successor? May the Judicial and Bar Council (JBC) resume the
PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its process of screening the candidates nominated or being
Immediate Past President, ATTY. ISRAELITO P. TORREON, considered to succeed Chief Justice Puno, and submit the list of
and the latter in his own personal capacity as a MEMBER of nominees to the incumbent President even during the period of the
the PHILIPPINE BAR; MITCHELL JOHN L. BOISER; BAGONG prohibition under Section 15, Article VII? Does mandamus lie to
ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. compel the submission of the shortlist of nominees by the JBC?
ARAULLO; BAYAN SECRETARY GENERAL RENATO M.
REYES, JR.; CONFEDERATION FOR UNITY, RECOGNITION
Precís of the Consolidated Cases
AND ADVANCE-MENT OF GOVERNMENT EMPLOYEES
(COURAGE) CHAIRMAN FERDINAND GAITE; KALIPUNAN
NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY Petitioners Arturo M. De Castro and John G. Peralta respectively
GENERAL GLORIA ARELLANO; ALYANSA NG commenced G.R. No. 1910021 and G.R. No. 1911492 as special
NAGKAKAISANG KABATAAN NG SAMBAYANAN PARA SA civil actions for certiorari and mandamus, praying that the JBC be
KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN LEONARD compelled to submit to the incumbent President the list of at least
RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; three nominees for the position of the next Chief Justice.
LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES
MARK TERRY LACUANAN RIDON; NATIONAL UNION OF In G.R. No. 191032,3 Jaime N. Soriano, via his petition for
STUDENTS OF THE PHILIPPINES (NUSP) CHAIRMAN prohibition, proposes to prevent the JBC from conducting its
EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE search, selection and nomination proceedings for the position of
PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and Chief Justice.
STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES
In G.R. No. 191057, a special civil action for mandamus,4 the For its part, PHILCONSA observes in its petition in G.R. No.
Philippine Constitution Association (PHILCONSA) wants the JBC 191057 that "unorthodox and exceptional circumstances spawned
to submit its list of nominees for the position of Chief Justice to be by the discordant interpretations, due perhaps to a perfunctory
vacated by Chief Justice Puno upon his retirement on May 17, understanding, of Sec. 15, Art. VII in relation to Secs. 4(1), 8(5) and
2010, because the incumbent President is not covered by the 9, Art. VIII of the Constitution" have bred "a frenzied inflammatory
prohibition that applies only to appointments in the Executive legal debate on the constitutional provisions mentioned that has
Department. divided the bench and the bar and the general public as well,
because of its dimensional impact to the nation and the people,"
In Administrative Matter No. 10-2-5-SC,5 petitioner Estelito M. thereby fashioning "transcendental questions or issues affecting
Mendoza, a former Solicitor General, seeks a ruling from the Court the JBC’s proper exercise of its "principal function of
for the guidance of the JBC on whether Section 15, Article VII recommending appointees to the Judiciary" by submitting only to
applies to appointments to the Judiciary. 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
In G.R. No. 191342,6 which the Court consolidated on March 9, judges of the lower courts may be appointed." 11 PHILCONSA
2010 with the petitions earlier filed, petitioners Amador Z. further believes and submits that now is the time to revisit and
Tolentino, Jr. and Roland B. Inting, Integrated Bar of the Philippines review Valenzuela, the "strange and exotic Decision of the Court
(IBP) Governors for Southern Luzon and Eastern Visayas, en banc."12
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 Peralta states in his petition in G.R. No. 191149 that mandamus
VII. 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.
All the petitions now before the Court pose as the principal legal Puno, in compliance with its mandated duty under the Constitution"
question whether the incumbent President can appoint the in the event that the Court resolves that the President can appoint
successor of Chief Justice Puno upon his retirement. That question a Chief Justice even during the election ban under Section 15,
is undoubtedly impressed with transcendental importance to the Article VII of the Constitution.13
Nation, because the appointment of the Chief Justice is any
President’s most important appointment.
The petitioners in G.R. No. 191342 insist that there is an actual
controversy, considering that the "JBC has initiated the process of
A precedent frequently cited is In Re Appointments Dated March receiving applications for the position of Chief Justice and has in
30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta fact begun the evaluation process for the applications to the
as Judges of the Regional Trial Court of Branch 62, Bago City and position," and "is perilously near completing the nomination
of Branch 24, Cabanatuan City, respectively (Valenzuela), 7 by process and coming up with a list of nominees for submission to
which the Court held that Section 15, Article VII prohibited the the President, entering into the period of the ban on midnight
exercise by the President of the power to appoint to judicial appointments on March 10, 2010," which "only highlights the
positions during the period therein fixed. pressing and compelling need for a writ of prohibition to enjoin such
alleged ministerial function of submitting the list, especially if it will
In G.R. No. 191002, De Castro submits that the conflicting opinions be cone within the period of the ban on midnight appointments."14
on the issue expressed by legal luminaries – one side holds that
the incumbent President is prohibited from making appointments Antecedents
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 These cases trace their genesis to the controversy that has arisen
only to appointments to executive positions that may influence the from the forthcoming compulsory retirement of Chief Justice Puno
election and, anyway, paramount national interest justifies the on May 17, 2010, or seven days after the presidential election.
appointment of a Chief Justice during the election ban – has Under Section 4(1), in relation to Section 9, Article VIII, that
impelled the JBC to defer the decision to whom to send its list of at "vacancy shall be filled within ninety days from the occurrence
least three nominees, whether to the incumbent President or to her thereof" from a "list of at least three nominees prepared by the
successor.8 He opines that the JBC is thereby arrogating unto itself Judicial and Bar Council for every vacancy."
"the judicial function that is not conferred upon it by the
Constitution," which has limited it to the task of recommending On December 22, 2009, Congressman Matias V. Defensor, an ex
appointees to the Judiciary, but has not empowered it to "finally officio member of the JBC, addressed a letter to the JBC,
resolve constitutional questions, which is the power vested only in requesting that the process for nominations to the office of the
the Supreme Court under the Constitution." As such, he contends Chief Justice be commenced immediately.
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 In its January 18, 2010 meeting en banc, therefore, the JBC passed
and definitive resolution of the constitutional questions raised a resolution,15 which reads:
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 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
In G.R. No. 191032, Soriano offers the view that the JBC incumbent Chief Justice Honorable Reynato S. Puno.
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 It will publish the opening of the position for applications or
position of Chief Justice to succeed Chief Justice Puno, because recommendations; deliberate on the list of candidates; publish the
the appointing authority for the position of Chief Justice is the names of candidates; accept comments on or opposition to the
Supreme Court itself, the President’s authority being limited to the applications; conduct public interviews of candidates; and prepare
appointment of the Members of the Supreme Court. Hence, the the shortlist of candidates.
JBC should not intervene in the process, unless a nominee is not
yet a Member of the Supreme Court.10
As to the time to submit this shortlist to the proper appointing Issues
authority, in the light of the Constitution, existing laws and
jurisprudence, the JBC welcomes and will consider all views on the Although it has already begun the process for the filling of the
matter. 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
18 January 2010. nominees for the position due to the controversy now before us
being yet unresolved. In the meanwhile, time is marching in quick
(sgd.) step towards May 17, 2010 when the vacancy occurs upon the
MA. LUISA D. VILLARAMA retirement of Chief Justice Puno.
Clerk of Court &
Ex-Officio Secretary The actions of the JBC have sparked a vigorous debate not only
Judicial and Bar Council among legal luminaries, but also among non-legal quarters, and
brought out highly disparate opinions on whether the incumbent
As a result, the JBC opened the position of Chief Justice for President can appoint the next Chief Justice or not. Petitioner
application or recommendation, and published for that purpose its Mendoza notes that in Valenzuela, which involved the
announcement dated January 20, 2010,16 viz: 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
The Judicial and Bar Council (JBC) announces the opening for that the polemics leading to Valenzuela "would be miniscule [sic]
application or recommendation, of the position of CHIEF JUSTICE compared to the "polemics" that have now erupted in regard to the
OF THE SUPREME COURT, which will be vacated on 17 May current controversy," and that unless "put to a halt, and this may
2010 upon the retirement of the incumbent Chief Justice, HON. only be achieved by a ruling from the Court, the integrity of the
REYNATO S. PUNO. process and the credibility of whoever is appointed to the position
of Chief Justice, may irreparably be impaired."23
Applications or recommendations for this position must be
submitted not later than 4 February 2010 (Thursday) to the JBC Accordingly, we reframe the issues as submitted by each
Secretariat xxx: petitioner in the order of the chronological filing of their petitions.

The announcement was published on January 20, 2010 in the G.R. No. 191002
Philippine Daily Inquirer and The Philippine Star. 17
a. Does the JBC have the power and authority to resolve
Conformably with its existing practice, the JBC "automatically the constitutional question of whether the incumbent
considered" for the position of Chief Justice the five most senior of President can appoint a Chief Justice during the election
the Associate Justices of the Court, namely: Associate Justice ban period?
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. b. Does the incumbent President have the power and
However, the last two declined their nomination through letters authority to appoint during the election ban the successor
dated January 18, 2010 and January 25, 2010, respectively. 18 of Chief Justice Puno when he vacates the position of
Chief Justice on his retirement on May 17, 2010?

Others either applied or were nominated. Victor Fernandez, the


retired Deputy Ombudsman for Luzon, applied, but later formally G.R. No. 191032
withdrew his name from consideration through his letter dated
February 8, 2010. Candidates who accepted their nominations a. Is the power to appoint the Chief Justice vested in the
without conditions were Associate Justice Renato C. Corona; Supreme Court en banc?
Associate Justice Teresita J. Leonardo-De Castro; Associate
Justice Arturo D. Brion; and Associate Justice Edilberto G. G.R. No. 191057
Sandoval (Sandiganbayan). Candidates who accepted their
nominations with conditions were Associate Justice Antonio T.
Carpio and Associate Justice Conchita Carpio Morales.19 Declining a. Is the constitutional prohibition against appointment
their nominations were Atty. Henry Villarica (via telephone under Section 15, Article VII of the Constitution applicable
conversation with the Executive Officer of the JBC on February 5, only to positions in the Executive Department?
2010) and Atty. Gregorio M. Batiller, Jr. (via telephone conversation
with the Executive Officer of the JBC on February 8, 2010). 20 b. Assuming that the prohibition under Section 15, Article
VII of the Constitution also applies to members of the
The JBC excluded from consideration former RTC Judge Judiciary, may such appointments be excepted because
Florentino Floro (for failure to meet the standards set by the JBC they are impressed with public interest or are demanded
rules); and Special Prosecutor Dennis Villa-Ignacio of the Office of by the exigencies of public service, thereby justifying
the Ombudsman (due to cases pending in the Office of the these appointments during the period of prohibition?
Ombudsman).21
c. Does the JBC have the authority to decide whether or
In its meeting of February 8, 2010, the JBC resolved to proceed to not to include and submit the names of nominees who
the next step of announcing the names of the following candidates manifested interest to be nominated for the position of
to invite the public to file their sworn complaint, written report, or Chief Justice on the understanding that his/her
opposition, if any, not later than February 22, 2010, to wit: nomination will be submitted to the next President in view
Associate Justice Carpio, Associate Justice Corona, Associate of the prohibition against presidential appointments from
Justice Carpio Morales, Associate Justice Leonardo-De Castro, March 11, 2010 until June 30, 2010?
Associate Justice Brion, and Associate Justice Sandoval. The
announcement came out in the Philippine Daily Inquirer and The A. M. No. 10-2-5-SC
Philippine Star issues of February 13, 2010.22
a. Does Section 15, Article VII of the Constitution apply to position of Chief Justice to be vacated by Chief Justice Puno;27 (c)
appointments to positions in the Judiciary under Section petitioner Soriano's theory that it is the Supreme Court, not the
9, Article VIII of the Constitution? President, who has the power to appoint the Chief Justice, is
incorrect, and proceeds from his misinterpretation of the phrase
b. May President Gloria Macapagal-Arroyo make "members of the Supreme Court" found in Section 9, Article VIII of
appointments to the Judiciary after March 10, 2010, the Constitution as referring only to the Associate Justices, to the
including that for the position of Chief Justice after Chief exclusion of the Chief Justice; 28 (d) a writ of mandamus can issue
Justice Puno retires on May 17, 2010? 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
G.R. No. 191149 ministerial act that the JBC is mandated to perform under the
Constitution; as such, the JBC, the nature of whose principal
a. Does the JBC have the discretion to withhold the function is executive, is not vested with the power to resolve who
submission of the short list to President Gloria has the authority to appoint the next Chief Justice and, therefore,
Macapagal-Arroyo? 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
G.R. No. 191342
is no imperative duty on its part to include in or exclude from the
list particular individuals, but, on the contrary, the JBC's
a. Does the JBC have the authority to submit the list of determination of who it nominates to the President is an exercise
nominees to the incumbent President without committing of a discretionary duty.30
a grave violation of the Constitution and jurisprudence
prohibiting the incumbent President from making midnight
The OSG contends that the incumbent President may appoint the
appointments two months immediately preceding the next
next Chief Justice, because the prohibition under Section 15,
presidential elections until the end of her term? Article VII of the Constitution does not apply to appointments in the
Supreme Court. It argues that any vacancy in the Supreme Court
b. Is any act performed by the JBC, including the vetting must be filled within 90 days from its occurrence, pursuant to
of the candidates for the position of Chief Justice, Section 4(1), Article VIII of the Constitution; 31 that in their
constitutionally invalid in view of the JBC's illegal deliberations on the mandatory period for the appointment of
composition allowing each member from the Senate and Supreme Court Justices, the framers neither mentioned nor
the House of Representatives to have one vote each? referred to the ban against midnight appointments, or its effects on
such period, or vice versa;32 that had the framers intended the
On February 16, 2010, the Court directed the JBC and the Office prohibition to apply to Supreme Court appointments, they could
of the Solicitor General (OSG) to comment on the consolidated have easily expressly stated so in the Constitution, which explains
petitions, except that filed in G.R. No. 191342. 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
On February 26, 2010, the JBC submitted its comment, reporting the President's power to appoint members of the Supreme Court
therein that the next stage of the process for the selection of the to ensure its independence from "political vicissitudes" and its
nominees for the position of Chief Justice would be the public "insulation from political pressures,"33 such as stringent
interview of the candidates and the preparation of the short list of qualifications for the positions, the establishment of the JBC, the
candidates, "including the interview of the constitutional experts, as specified period within which the President shall appoint a
may be needed."24 It stated:25 Supreme Court Justice.

Likewise, the JBC has yet to take a position on when to submit the The OSG posits that although Valenzuela involved the appointment
shortlist to the proper appointing authority, in light of Section 4 (1), of RTC Judges, the situation now refers to the appointment of the
Article VIII of the Constitution, which provides that vacancy in the next Chief Justice to which the prohibition does not apply; that, at
Supreme Court shall be filled within ninety (90) days from the any rate, Valenzuela even recognized that there might be "the
occurrence thereof, Section 15, Article VII of the Constitution imperative need for an appointment during the period of the ban,"
concerning the ban on Presidential appointments "two (2) months like when the membership of the Supreme Court should be "so
immediately before the next presidential elections and up to the reduced that it will have no quorum, or should the voting on a
end of his term" and Section 261 (g), Article XXII of the Omnibus particular important question requiring expeditious resolution be
Election Code of the Philippines. divided";34 and that Valenzuela also recognized that the filling of
vacancies in the Judiciary is undoubtedly in the public interest,
12. Since the Honorable Supreme Court is the final interpreter of most especially if there is any compelling reason to justify the
the Constitution, the JBC will be guided by its decision in these making of the appointments during the period of the prohibition. 35
consolidated Petitions and Administrative Matter.
Lastly, the OSG urges that there are now undeniably compelling
On February 26, 2010, the OSG also submitted its comment, reasons for the incumbent President to appoint the next Chief
essentially stating that the incumbent President can appoint the Justice, to wit: (a) a deluge of cases involving sensitive political
successor of Chief Justice Puno upon his retirement by May 17, issues is "quite expected";36 (b) the Court acts as the Presidential
2010. 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
The OSG insists that: (a) a writ of prohibition cannot issue to
correct manifest errors on the statement of votes (SOV) and
prevent the JBC from performing its principal function under the
certificates of canvass (COC)";37 (c) if history has shown that
Constitution to recommend appointees in the Judiciary; (b) the
during ordinary times the Chief Justice was appointed immediately
JBC's function to recommend is a "continuing process," which does
upon the occurrence of the vacancy, from the time of the effectivity
not begin with each vacancy or end with each nomination, because
of the Constitution, there is now even more reason to appoint the
the goal is "to submit the list of nominees to Malacañang on the
next Chief Justice immediately upon the retirement of Chief Justice
very day the vacancy arises";26 the JBC was thus acting within its
Puno;38 and (d) should the next Chief Justice come from among
jurisdiction when it commenced and set in motion the process of
the incumbent Associate Justices of the Supreme Court, thereby
selecting the nominees to be submitted to the President for the
causing a vacancy, it also becomes incumbent upon the JBC to
start the selection process for the filling up of the vacancy in is already in effect. Tan adds that the prohibition against midnight
accordance with the constitutional mandate.39 appointments was applied by the Court to the appointments to the
Judiciary made by then President Ramos, with the Court holding
On March 9, 2010, the Court admitted the following that the duty of the President to fill the vacancies within 90 days
comments/oppositions-in-intervention, to wit: 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.
(a) The opposition-in-intervention dated February 22,
2010 of Atty. Peter Irving Corvera (Corvera);40
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al.,
and Bello et al. oppose the insistence that Valenzuela recognizes
(b) The opposition-in-intervention dated February 22, the possibility that the President may appoint the next Chief Justice
2010 of Atty. Christian Robert S. Lim (Lim); if exigent circumstances warrant the appointment, because that
recognition is obiter dictum; and aver that the absence of a Chief
(c) The opposition-in-intervention dated February 23, Justice or even an Associate Justice does not cause epic damage
2010 of Atty. Alfonso V. Tan, Jr. (Tan); 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
(d) The comment/opposition-in-intervention dated March to sit and adjudge en banc or in divisions of three, five or seven
1, 2010 of the National Union of People's Lawyers
members at its discretion; that a full membership of the Court is not
(NUPL);
necessary; that petitioner De Castro's fears are unfounded and
baseless, being based on a mere possibility, the occurrence of
(e) The opposition-in-intervention dated February 25, which is entirely unsure; that it is not in the national interest to have
2010 of Atty. Marlou B. Ubano (Ubano); a Chief Justice whose appointment is unconstitutional and,
therefore, void; and that such a situation will create a crisis in the
(f) The opposition-in-intervention dated February 25, 2010 judicial system and will worsen an already vulnerable political
of Integrated Bar of the Philippines-Davao del Sur situation.
Chapter and its Immediate Past President, Atty. Israelito
P. Torreon (IBP- Davao del Sur); ice is imperative for the stability of the judicial system and the
political situation in the country when the election-related questions
(g) The opposition-in-intervention dated February 26, reach the Court as false, because there is an existing law on filling
2010 of Atty. Mitchell John L. Boiser (Boiser); 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;
(h)The consolidated comment/opposition-in-intervention that a temporary or an acting Chief Justice is not anathema to
dated February 26, 2010 of BAYAN Chairman Dr. judicial independence; that the designation of an acting Chief
Carolina P. Araullo; BAYAN Secretary General Renato M. Justice is not only provided for by law, but is also dictated by
Reyes, Jr.; Confederation for Unity, Recognition and practical necessity; that the practice was intended to be enshrined
Advancement of Government Employees (COURAGE) in the 1987 Constitution, but the Commissioners decided not to
Chairman Ferdinand Gaite; Kalipunan ng Damayang write it in the Constitution on account of the settled practice; that
Mahihirap (KADAMAY) Secretary General Gloria the practice was followed under the 1987 Constitution, when, in
Arellano; Alyansa ng Nagkakaisang Kabataan ng 1992, at the end of the term of Chief Justice Marcelo B. Fernan,
Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Associate Justice Andres Narvasa assumed the position as Acting
Ken Leonard Ramos; Tayo ang Pag-asa Convenor Alvin Chief Justice prior to his official appointment as Chief Justice; that
Peters; League of Filipino Students (LFS) Chairman said filling up of a vacancy in the office of the Chief Justice was
James Mark Terry Lacuanan Ridon; National Union of acknowledged and even used by analogy in the case of the
Students of the Philippines (NUSP) Chairman Einstein vacancy of the Chairman of the Commission on Elections,
Recedes, College Editors Guild of the Philippines (CEGP) per Brillantes v. Yorac, 192 SCRA 358; and that the history of the
Chairman Vijae Alquisola; and Student Christian Supreme Court has shown that this rule of succession has been
Movement of the Philippines (SCMP) Chairman Ma. repeatedly observed and has become a part of its tradition.
Cristina Angela Guevarra (BAYAN et al.);
Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that
(i) The opposition-in-intervention dated March 3, 2010 of the Omnibus Election Code penalizes as an election offense the
Walden F. Bello and Loretta Ann P. Rosales (Bello et al.); act of any government official who appoints, promotes, or gives any
and increase in salary or remuneration or privilege to any government
official or employee during the period of 45 days before a regular
(j) The consolidated comment/opposition-in-intervention election; that the provision covers all appointing heads, officials,
dated March 4, 2010 of the Women Trial Lawyers and officers of a government office, agency or instrumentality,
Organization of the Philippines (WTLOP), represented by including the President; that for the incumbent President to appoint
Atty. Yolanda Quisumbing-Javellana; Atty. Belleza the next Chief Justice upon the retirement of Chief Justice Puno,
Alojado Demaisip; Atty. Teresita Gandionco-Oledan; Atty. or during the period of the ban under the Omnibus Election Code,
Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta. constitutes an election offense; that even an appointment of the
Romana; Atty. Leonila de Jesus; and Atty. Guinevere de next Chief Justice prior to the election ban is fundamentally invalid
Leon (WTLOP). 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.
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 Intervenor Boiser adds that De Castro's prayer to compel the
outgoing President is constitutionally banned from making any submission of nominees by the JBC to the incumbent President is
appointments from March 10, 2010 until June 30, 2010, including off-tangent because the position of Chief Justice is still not vacant;
the appointment of the successor of Chief Justice Puno. Hence, that to speak of a list, much more a submission of such list, before
mandamus does not lie to compel the JBC to submit the list of a vacancy occurs is glaringly premature; that the proposed
nominees to the outgoing President if the constitutional prohibition advance appointment by the incumbent President of the next Chief
Justice will be unconstitutional; and that no list of nominees can be long period starting two months before the presidential elections
submitted by the JBC if there is no vacancy. 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
All the intervenors-oppositors submit that Section 15, Article VII of screening and nominating qualified persons for appointment to
makes no distinction between the kinds of appointments made by the Judiciary.
the President; and that the Court, in Valenzuela, ruled that the
appointments by the President of the two judges during the Thus, we resolve.
prohibition period were void.
Ruling of the Court
Intervenor WTLOP posits that Section 15, Article VII of the 1987
Constitution does not apply only to the appointments in the Locus Standi of Petitioners
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 The preliminary issue to be settled is whether or not the
as applicable to judicial appointments. petitioners have locus standi.

Intervenor WTLOP further posits that petitioner Soriano's Black defines locus standi as "a right of appearance in a court of
contention that the power to appoint the Chief Justice is vested, not justice on a given question."41 In public or constitutional litigations,
in the President, but in the Supreme Court, is utterly baseless, the Court is often burdened with the determination of the locus
because the Chief Justice is also a Member of the Supreme Court standi of the petitioners due to the ever-present need to regulate
as contemplated under Section 9, Article VIII; and that, at any rate, the invocation of the intervention of the Court to correct any official
the term "members" was interpreted in Vargas v. Rillaroza (G.R. action or policy in order to avoid obstructing the efficient functioning
No. L-1612, February 26, 1948) to refer to the Chief Justice and of public officials and offices involved in public service. It is
the Associate Justices of the Supreme Court; that PHILCONSA's required, therefore, that the petitioner must have a personal stake
prayer that the Court pass a resolution declaring that persons who in the outcome of the controversy, for, as indicated in Agan, Jr. v.
manifest their interest as nominees, but with conditions, shall not Philippine International Air Terminals Co., Inc.:42
be considered nominees by the JBC is diametrically opposed to the
arguments in the body of its petition; that such glaring The question on legal standing is whether such parties have
inconsistency between the allegations in the body and the relief "alleged such a personal stake in the outcome of the controversy
prayed for highlights the lack of merit of PHILCONSA's petition; that as to assure that concrete adverseness which sharpens the
the role of the JBC cannot be separated from the constitutional presentation of issues upon which the court so largely depends for
prohibition on the President; and that the Court must direct the JBC illumination of difficult constitutional questions." 43 Accordingly, it
to follow the rule of law, that is, to submit the list of nominees only has been held that the interest of a person assailing the
to the next duly elected President after the period of the constitutionality of a statute must be direct and personal. He must
constitutional ban against midnight appointments has expired. 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
Oppositor IBP Davao del Sur opines that the JBC - because it is sustaining some direct injury as a result of its enforcement, and not
neither a judicial nor a quasi-judicial body - has no duty under the merely that he suffers thereby in some indefinite way. It must
Constitution to resolve the question of whether the incumbent appear that the person complaining has been or is about to be
President can appoint a Chief Justice during the period of denied some right or privilege to which he is lawfully entitled or that
prohibition; that even if the JBC has already come up with a short he is about to be subjected to some burdens or penalties by reason
list, it still has to bow to the strict limitations under Section 15, of the statute or act complained of.44
Article VII; that should the JBC defer submission of the list, it is not
arrogating unto itself a judicial function, but simply respecting the It is true that as early as in 1937, in People v. Vera,45 the Court
clear mandate of the Constitution; and that the application of the adopted the direct injury test for determining whether a petitioner
general rule in Section 15, Article VII to the Judiciary does not in a public action had locus standi. There, the Court held that the
violate the principle of separation of powers, because said person who would assail the validity of a statute must have "a
provision is an exception. personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result." Vera was
Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the followed in Custodio v. President of the Senate,46 Manila Race
JBC's act of nominating appointees to the Supreme Court is purely Horse Trainers' Association v. De la Fuente,47 Anti-Chinese
ministerial and does not involve the exercise of judgment; that there League of the Philippines v. Felix,48 and Pascual v. Secretary of
can be no default on the part of the JBC in submitting the list of Public Works.49
nominees to the President, considering that the call for applications
only begins from the occurrence of the vacancy in the Supreme Yet, the Court has also held that the requirement of locus standi,
Court; and that the commencement of the process of screening of being a mere procedural technicality, can be waived by the Court
applicants to fill the vacancy in the office of the Chief Justice only in the exercise of its discretion. For instance, in 1949, in Araneta v.
begins from the retirement on May 17, 2010, for, prior to this date, Dinglasan,50 the Court liberalized the approach when the cases
there is no definite legal basis for any party to claim that the had "transcendental importance." Some notable controversies
submission or non-submission of the list of nominees to the whose petitioners did not pass the direct injury test were allowed to
President by the JBC is a matter of right under law. be treated in the same way as in Araneta v. Dinglasan.51

The main question presented in all the filings herein - because it In the 1975 decision in Aquino v. Commission on Elections,52 this
involves two seemingly conflicting provisions of the Constitution - Court decided to resolve the issues raised by the petition due to
imperatively demands the attention and resolution of this Court, the their "far-reaching implications," even if the petitioner had no
only authority that can resolve the question definitively and finally. personality to file the suit. The liberal approach of Aquino v.
The imperative demand rests on the ever-present need, first, to Commission on Elections has been adopted in several notable
safeguard the independence, reputation, and integrity of the entire cases, permitting ordinary citizens, legislators, and civic
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 organizations to bring their suits involving the constitutionality or
outgoing President's power to appoint to the Judiciary within the validity of laws, regulations, and rulings.53
However, the assertion of a public right as a predicate for constitutional supervision and authority over them and other
challenging a supposedly illegal or unconstitutional executive or members of the legal profession.61
legislative action rests on the theory that the petitioner represents
the public in general. Although such petitioner may not be as The Court rules that the petitioners have each demonstrated
adversely affected by the action complained against as are others, adequate interest in the outcome of the controversy as to vest them
it is enough that he sufficiently demonstrates in his petition that he with the requisite locus standi. The issues before us are of
is entitled to protection or relief from the Court in the vindication of transcendental importance to the people as a whole, and to the
a public right. petitioners in particular. Indeed, the issues affect everyone
(including the petitioners), regardless of one's personal interest in
Quite often, as here, the petitioner in a public action sues as a life, because they concern that great doubt about the authority of
citizen or taxpayer to gain locus standi. That is not surprising, for the incumbent President to appoint not only the successor of the
even if the issue may appear to concern only the public in general, retiring incumbent Chief Justice, but also others who may serve in
such capacities nonetheless equip the petitioner with adequate the Judiciary, which already suffers from a far too great number of
interest to sue. In David v. Macapagal-Arroyo,54 the Court aptly vacancies in the ranks of trial judges throughout the country.
explains why:
In any event, the Court retains the broad discretion to waive the
Case law in most jurisdictions now allows both "citizen" and requirement of legal standing in favor of any petitioner when the
"taxpayer" standing in public actions. The distinction was first laid matter involved has transcendental importance, or otherwise
down in Beauchamp v. Silk,55 where it was held that the plaintiff in requires a liberalization of the requirement.62
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 Yet, if any doubt still lingers about the locus standi of any petitioner,
expenditure of public funds, while in the latter, he is but the we dispel the doubt now in order to remove any obstacle or
mere instrument of the public concern. As held by the New York obstruction to the resolution of the essential issue squarely
Supreme Court in People ex rel Case v. Collins:56 "In matter of presented herein. We are not to shirk from discharging our solemn
mere public right, however…the people are the real parties…It duty by reason alone of an obstacle more technical than otherwise.
is at least the right, if not the duty, of every citizen to interfere In Agan, Jr. v. Philippine International Air Terminals Co., Inc.,63 we
and see that a public offence be properly pursued and pointed out: "Standing is a peculiar concept in constitutional law
punished, and that a public grievance be remedied." With because in some cases, suits are not brought by parties who have
respect to taxpayer's suits, Terr v. Jordan57 held that "the right of been personally injured by the operation of a law or any other
a citizen and a taxpayer to maintain an action in courts to government act but by concerned citizens, taxpayers or voters who
restrain the unlawful use of public funds to his injury cannot actually sue in the public interest." But even if, strictly speaking, the
be denied."58 petitioners "are not covered by the definition, it is still within the
wide discretion of the Court to waive the requirement and so
Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. remove the impediment to its addressing and resolving the serious
191032) and Peralta (G.R. No. 191149) all assert their right as constitutional questions raised."64
citizens filing their petitions on behalf of the public who are directly
affected by the issue of the appointment of the next Chief Justice. Justiciability
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 Intervenor NUPL maintains that there is no actual case or
of public funds."59 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
PHILCONSA alleges itself to be a non-stock, non-profit imminent controversy as to whether such list must be submitted to
organization existing under the law for the purpose of defending, the incumbent President, or reserved for submission to the
protecting, and preserving the Constitution and promoting its incoming President.
growth and flowering. It also alleges that the Court has recognized
its legal standing to file cases on constitutional issues in several
cases.60 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
In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the selection process and is now ready to submit the list to the
Philippines, a member of the Philippine Bar engaged in the active incumbent President; and that petitioner De Castro is merely
practice of law, and a former Solicitor General, former Minister of presenting a hypothetical scenario that is clearly not sufficient for
Justice, former Member of the Interim Batasang Pambansa and the the Court to exercise its power of judicial review.
Regular Batasang Pambansa, and former member of the Faculty
of the College of Law of the University of the Philippines.
Intervenors Corvera and Lim separately opine that De Castro's
petition rests on an overbroad and vague allegation of political
The petitioners in G.R. No. 191342 are the Governors of the tension, which is insufficient basis for the Court to exercise its
Integrated Bar of the Philippines (IBP) for Southern Luzon and power of judicial review.
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 Intervenor BAYAN et al. contend that the petitioners are seeking a
application of the constitutional ban on midnight appointments with mere advisory opinion on what the JBC and the President should
regard to respondent JBC's function in submitting the list of do, and are not invoking any issues that are justiciable in nature.
nominees is well within the concern of petitioners, who are duty
bound to ensure that obedience and respect for the Constitution is Intervenors Bello et al. submit that there exist no conflict of legal
upheld, most especially by government offices, such as respondent rights and no assertion of opposite legal claims in any of the
JBC, who are specifically tasked to perform crucial functions in the petitions; that PHILCONSA does not allege any action taken by the
whole scheme of our democratic institution." They further allege JBC, but simply avers that the conditional manifestations of two
that, reposed in them as members of the Bar, is a clear legal Members of the Court, accented by the divided opinions and
interest in the process of selecting the members of the Supreme interpretations of legal experts, or associations of lawyers and law
Court, and in the selection of the Chief Justice, considering that the students on the issues published in the daily newspapers are
person appointed becomes a member of the body that has
"matters of paramount and transcendental importance to the with a constitutional interest, but seemingly proscribed by the
bench, bar and general public"; that PHILCONSA fails not only to Constitution. A reasonable certainty of the occurrence of the
cite any legal duty or allege any failure to perform the duty, but also perceived threat to a constitutional interest is sufficient to afford a
to indicate what specific action should be done by the JBC; that basis for bringing a challenge, provided the Court has sufficient
Mendoza does not even attempt to portray the matter as a facts before it to enable it to intelligently adjudicate the
controversy or conflict of rights, but, instead, prays that the Court issues.65 Herein, the facts are not in doubt, for only legal issues
should "rule for the guidance of" the JBC; that the fact that the Court remain.
supervises the JBC does not automatically imply that the Court can
rule on the issues presented in the Mendoza petition, because Substantive Merits
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 I
exercising oversight order the action to be redone to conform to the
prescribed rules; that the Mendoza petition does not allege that the Prohibition under Section 15, Article VII does not apply to
JBC has performed a specific act susceptible to correction for being appointments to fill a vacancy in the Supreme Court or to other
illegal or unconstitutional; and that the Mendoza petition asks the appointments to the Judiciary
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
Two constitutional provisions are seemingly in conflict.
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 The first, Section 15, Article VII (Executive Department), provides:
that is ripe for judicial determination. The reality is that the JBC
already commenced the proceedings for the selection of the Section 15. Two months immediately before the next presidential
nominees to be included in a short list to be submitted to the elections and up to the end of his term, a President or Acting
President for consideration of which of them will succeed Chief President shall not make appointments, except temporary
Justice Puno as the next Chief Justice. Although the position is not appointments to executive positions when continued vacancies
yet vacant, the fact that the JBC began the process of nomination therein will prejudice public service or endanger public safety.
pursuant to its rules and practices, although it has yet to decide
whether to submit the list of nominees to the incumbent outgoing The other, Section 4 (1), Article VIII (Judicial Department), states:
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 Section 4. (1). The Supreme Court shall be composed of a Chief
candidates, and the "interview of constitutional experts, as may be Justice and fourteen Associate Justices. It may sit en banc or in its
needed." discretion, in division of three, five, or seven Members. Any
vacancy shall be filled within ninety days from the occurrence
thereof.
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 In the consolidated petitions, the petitioners, with the exception of
once the vacancy has occurred (that is, after May 17, 2010). Soriano, Tolentino and Inting, submit that the incumbent President
Another part is, of course, whether the JBC may resume its process can appoint the successor of Chief Justice Puno upon his
until the short list is prepared, in view of the provision of Section retirement on May 17, 2010, on the ground that the prohibition
4(1), Article VIII, which unqualifiedly requires the President to against presidential appointments under Section 15, Article VII
appoint one from the short list to fill the vacancy in the Supreme does not extend to appointments in the Judiciary.
Court (be it the Chief Justice or an Associate Justice) within 90
days from the occurrence of the vacancy. The Court agrees with the submission.

The ripeness of the controversy for judicial determination may not First. The records of the deliberations of the Constitutional
be doubted. The challenges to the authority of the JBC to open the Commission reveal that the framers devoted time to meticulously
process of nomination and to continue the process until the drafting, styling, and arranging the Constitution. Such
submission of the list of nominees; the insistence of some of the meticulousness indicates that the organization and arrangement of
petitioners to compel the JBC through mandamus to submit the the provisions of the Constitution were not arbitrarily or whimsically
short list to the incumbent President; the counter-insistence of the done by the framers, but purposely made to reflect their intention
intervenors to prohibit the JBC from submitting the short list to the and manifest their vision of what the Constitution should contain.
incumbent President on the ground that said list should be
submitted instead to the next President; the strong position that the
The Constitution consists of 18 Articles, three of which embody the
incumbent President is already prohibited under Section 15, Article
allocation of the awesome powers of government among the three
VII from making any appointments, including those to the Judiciary,
great departments, the Legislative (Article VI), the Executive
starting on May 10, 2010 until June 30, 2010; and the contrary
(Article VII), and the Judicial Departments (Article VIII). The
position that the incumbent President is not so prohibited are only
arrangement was a true recognition of the principle of separation
some of the real issues for determination. All such issues establish
of powers that underlies the political structure, as Constitutional
the ripeness of the controversy, considering that for some the short
Commissioner Adolfo S. Azcuna (later a worthy member of the
list must be submitted before the vacancy actually occurs by May
Court) explained in his sponsorship speech:
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 We have in the political part of this Constitution opted for the
JBC from moving on with the process that it already began, or that separation of powers in government because we believe that the
are reasons persuading the JBC to desist from the rest of the only way to protect freedom and liberty is to separate and divide
process. the awesome powers of government. Hence, we return to the
separation of powers doctrine and the legislative, executive and
judicial departments.66
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
As can be seen, Article VII is devoted to the Executive Department, language - that "a President or Acting President shall not make
and, among others, it lists the powers vested by the Constitution in appointments…"
the President. The presidential power of appointment is dealt with
in Sections 14, 15 and 16 of the Article. The commission later approved a proposal of Commissioner Hilario
G. Davide, Jr. (now a Member of this Court) to add to what is now
Article VIII is dedicated to the Judicial Department and defines the Section 9 of Article VIII, the following paragraph: "WITH RESPECT
duties and qualifications of Members of the Supreme Court, among TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE
others. Section 4(1) and Section 9 of this Article are the provisions APPOINTMENT WITHIN NINETY DAYS FROM THE
specifically providing for the appointment of Supreme Court SUBMISSION OF THE LIST" (of nominees by the Judicial and Bar
Justices. In particular, Section 9 states that the appointment of Council to the President). Davide stated that his purpose was to
Supreme Court Justices can only be made by the President upon provide a "uniform rule" for lower courts. According to him, the 90-
the submission of a list of at least three nominees by the JBC; day period should be counted from submission of the list of
Section 4(1) of the Article mandates the President to fill the nominees to the President in view of the possibility that the
vacancy within 90 days from the occurrence of the vacancy. President might reject the list submitted to him and the JBC thus
need more time to submit a new one.
Had the framers intended to extend the prohibition contained in
Section 15, Article VII to the appointment of Members of the On the other hand, Section 15, Article VII - which in effect deprives
Supreme Court, they could have explicitly done so. They could not the President of his appointing power "two months immediately
have ignored the meticulous ordering of the provisions. They would before the next presidential elections up to the end of his term" -
have easily and surely written the prohibition made explicit in was approved without discussion.68
Section 15, Article VII as being equally applicable to the
appointment of Members of the Supreme Court in Article VIII itself, However, the reference to the records of the Constitutional
most likely in Section 4 (1), Article VIII. That such specification was Commission did not advance or support the result in Valenzuela.
not done only reveals that the prohibition against the President or Far to the contrary, the records disclosed the express intent of the
Acting President making appointments within two months before framers to enshrine in the Constitution, upon the initiative of
the next presidential elections and up to the end of the President's Commissioner Eulogio Lerum, "a command [to the President] to fill
or Acting President's term does not refer to the Members of the up any vacancy therein within 90 days from its occurrence," which
Supreme Court. even Valenzuela conceded.69 The exchanges during deliberations
of the Constitutional Commission on October 8, 1986 further show
Although Valenzuela67 came to hold that the prohibition covered that the filling of a vacancy in the Supreme Court within the 90-day
even judicial appointments, it cannot be disputed that the period was a true mandate for the President, viz:
Valenzuela dictum did not firmly rest on the deliberations of the
Constitutional Commission. Thereby, the confirmation made to the MR. DE CASTRO. I understand that our justices now in the
JBC by then Senior Associate Justice Florenz D. Regalado of this Supreme Court, together with the Chief Justice, are only 11.
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 MR. CONCEPCION. Yes.
mentioned, should prevail.
MR. DE CASTRO. And the second sentence of this subsection
Relevantly, Valenzuela adverted to the intent of the framers in the reads: "Any vacancy shall be filled within ninety days from the
genesis of Section 4 (1), Article VIII, viz: occurrence thereof."

V. Intent of the Constitutional Commission MR. CONCEPCION. That is right.

The journal of the Commission which drew up the present MR. DE CASTRO. Is this now a mandate to the executive to fill
Constitution discloses that the original proposal was to have an the vacancy?
eleven-member Supreme Court. Commissioner Eulogio Lerum
wanted to increase the number of Justices to fifteen. He also MR. CONCEPCION. That is right. That is borne out of the fact
wished to ensure that that number would not be reduced for any that in the past 30 years, seldom has the Court had a complete
appreciable length of time (even only temporarily), and to this end complement.70
proposed that any vacancy "must be filled within two months from
the date that the vacancy occurs." His proposal to have a 15-
Moreover, the usage in Section 4(1), Article VIII of the word shall -
member Court was not initially adopted. Persisting however in his
an imperative, operating to impose a duty that may be enforced 71 -
desire to make certain that the size of the Court would not be
decreased for any substantial period as a result of vacancies, should not be disregarded. Thereby, Sections 4(1) imposes on the
Lerum proposed the insertion in the provision (anent the Court's President the imperative duty to make an appointment of a Member
of the Supreme Court within 90 days from the occurrence of the
membership) of the same mandate that "IN CASE OF ANY
vacancy. The failure by the President to do so will be a clear
VACANCY, THE SAME SHALL BE FILLED WITHIN TWO
MONTHS FROM OCCURRENCE THEREOF." He later agreed to disobedience to the Constitution.
suggestions to make the period three, instead of two, months. As
thus amended, the proposal was approved. As it turned out, The 90-day limitation fixed in Section 4(1), Article VIII for the
however, the Commission ultimately agreed on a fifteen-member President to fill the vacancy in the Supreme Court was undoubtedly
Court. Thus it was that the section fixing the composition of the a special provision to establish a definite mandate for the President
Supreme Court came to include a command to fill up any vacancy as the appointing power, and cannot be defeated by mere judicial
therein within 90 days from its occurrence. 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
In this connection, it may be pointed out that that instruction that
any "vacancy shall be filled within ninety days" (in the last sentence records of the Constitutional Commission's deliberations on
of Section 4 (1) of Article VIII) contrasts with the prohibition in Section 4 (1), Article VIII.
Section 15, Article VII, which is couched in stronger negative
How Valenzuela justified its pronouncement and result is hardly election and are similar to those which are declared election
warranted. According to an authority on statutory construction:72 offenses in the Omnibus Election Code, viz.:

xxx the court should seek to avoid any conflict in the provisions of xxx
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 The second type of appointments prohibited by Section 15, Article
any other writing for that matter, which may not in some manner VII consists of the so-called "midnight" appointments. In Aytona v.
contain conflicting provisions. But what appears to the reader to be Castillo, it was held that after the proclamation of Diosdado
a conflict may not have seemed so to the drafter. Undoubtedly, Macapagal as duly elected President, President Carlos P. Garcia,
each provision was inserted for a definite reason. Often by who was defeated in his bid for reelection, became no more than a
considering the enactment in its entirety, what appears to be on its "caretaker" administrator whose duty was to "prepare for the
face a conflict may be cleared up and the provisions reconciled. orderly transfer of authority to the incoming President." Said the
Court:
Consequently, that construction which will leave every word
operative will be favored over one which leaves some word or "The filling up of vacancies in important positions, if few, and so
provision meaningless because of inconsistency. But a word spaced as to afford some assurance of deliberate action and
should not be given effect, if to do so gives the statute a meaning careful consideration of the need for the appointment and
contrary to the intent of the legislature. On the other hand, if full appointee's qualifications may undoubtedly be permitted. But the
effect cannot be given to the words of a statute, they must be made issuance of 350 appointments in one night and the planned
effective as far as possible. Nor should the provisions of a statute induction of almost all of them in a few hours before the
which are inconsistent be harmonized at a sacrifice of the inauguration of the new President may, with some reason, be
legislative intention. It may be that two provisions are irreconcilable; regarded by the latter as an abuse of Presidential prerogatives, the
if so, the one which expresses the intent of the law-makers should steps taken being apparently a mere partisan effort to fill all vacant
control. And the arbitrary rule has been frequently announced that positions irrespective of fitness and other conditions, and thereby
where there is an irreconcilable conflict between the different to deprive the new administration of an opportunity to make the
provisions of a statute, the provision last in order of position will corresponding appointments."
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 As indicated, the Court recognized that there may well be
exists between different sections of the same act, and after all other appointments to important positions which have to be made even
means of ascertaining the meaning of the legislature have been after the proclamation of the new President. Such appointments,
exhausted. Where the conflict is between two statutes, more may so long as they are "few and so spaced as to afford some
be said in favor of the rule's application, largely because of the assurance of deliberate action and careful consideration of the
principle of implied repeal. 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
In this connection, PHILCONSA's urging of a revisit and a review have been well considered, were upheld.
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 Section 15, Article VII has a broader scope than the Aytona ruling.
provision, least of all one found in Article VII. It further ignored that It may not unreasonably be deemed to contemplate not only
the two provisions had no irreconcilable conflict, regardless of "midnight" appointments - those made obviously for partisan
Section 15, Article VII being couched in the negative. As judges, reasons as shown by their number and the time of their making -
we are not to unduly interpret, and should not accept an but also appointments presumed made for the purpose of
interpretation that defeats the intent of the framers. 73 influencing the outcome of the Presidential election.

Consequently, prohibiting the incumbent President from appointing On the other hand, the exception in the same Section 15 of Article
a Chief Justice on the premise that Section 15, Article VII extends VII - allowing appointments to be made during the period of the ban
to appointments in the Judiciary cannot be sustained. A therein provided - is much narrower than that recognized in Aytona.
misinterpretation like Valenzuela should not be allowed to last after The exception allows only the making of temporary appointments
its false premises have been exposed.74 It will not do to merely to executive positions when continued vacancies will prejudice
distinguish Valenzuela from these cases, for the result to be public service or endanger public safety. Obviously, the article
reached herein is entirely incompatible with what Valenzuela greatly restricts the appointing power of the President during the
decreed. Consequently, Valenzuela now deserves to be quickly period of the ban.
sent to the dustbin of the unworthy and forgettable.
Considering the respective reasons for the time frames for filling
We reverse Valenzuela. 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
Second. Section 15, Article VII does not apply as well to all other prevention of vote-buying and similar evils outweighs the need for
appointments in the Judiciary. avoiding delays in filling up of court vacancies or the disposition of
some cases. Temporary vacancies can abide the period of the ban
There is no question that one of the reasons underlying the which, incidentally and as earlier pointed out, comes to exist only
adoption of Section 15 as part of Article VII was to eliminate once in every six years. Moreover, those occurring in the lower
midnight appointments from being made by an outgoing Chief courts can be filled temporarily by designation. But prohibited
Executive in the mold of the appointments dealt with in the leading appointments are long-lasting and permanent in their effects. They
case of Aytona v. Castillo.75 In fact, in Valenzuela, the Court so may, as earlier pointed out, in fact influence the results of elections
observed, stating that: and, for that reason, their making is considered an election
offense.76
xxx it appears that Section 15, Article VII is directed against two
types of appointments: (1) those made for buying votes and (2) Given the background and rationale for the prohibition in Section
those made for partisan considerations. The first refers to those 15, Article VII, we have no doubt that the Constitutional
appointments made within the two months preceding a Presidential Commission confined the prohibition to appointments made in the
Executive Department. The framers did not need to extend the third level courts may only be removed for cause, but the Members
prohibition to appointments in the Judiciary, because their of the Supreme Court may be removed only by impeachment.
establishment of the JBC and their subjecting the nomination and
screening of candidates for judicial positions to the unhurried and Section 16 covers only the presidential appointments that require
deliberate prior process of the JBC ensured that there would no confirmation by the Commission on Appointments. Thereby, the
longer be midnight appointments to the Judiciary. If midnight Constitutional Commission restored the requirement of
appointments in the mold of Aytona were made in haste and with confirmation by the Commission on Appointments after the
irregularities, or made by an outgoing Chief Executive in the last requirement was removed from the 1973 Constitution. Yet,
days of his administration out of a desire to subvert the policies of because of Section 9 of Article VIII, the restored requirement did
the incoming President or for partisanship, 77 the appointments to not include appointments to the Judiciary.83
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 Section 14, Section 15, and Section 16 are obviously of the same
the ascertainment of the purpose of the enactment is a step in the character, in that they affect the power of the President to appoint.
process of ascertaining the intent or meaning of the enactment, The fact that Section 14 and Section 16 refer only to appointments
because the reason for the enactment must necessarily shed within the Executive Department renders conclusive that Section
considerable light on "the law of the statute," i.e., the intent; hence, 15 also applies only to the Executive Department. This conclusion
the enactment should be construed with reference to its intended is consistent with the rule that every part of the statute must be
scope and purpose, and the court should seek to carry out this interpreted with reference to the context, i.e. that every part must
purpose rather than to defeat it.78 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
Also, the intervention of the JBC eliminates the danger that Section 14 and Section 16, if they intended Section 15 to cover all
appointments to the Judiciary can be made for the purpose of kinds of presidential appointments. If that was their intention in
buying votes in a coming presidential election, or of satisfying respect of appointments to the Judiciary, the framers, if only to be
partisan considerations. The experience from the time of the clear, would have easily and surely inserted a similar prohibition in
establishment of the JBC shows that even candidates for judicial Article VIII, most likely within Section 4 (1) thereof.
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 Fifth. To hold like the Court did in Valenzuela that Section 15
undergo the vetting of the JBC and pass muster there. Indeed, the extends to appointments to the Judiciary further undermines the
creation of the JBC was precisely intended to de-politicize the intent of the Constitution of ensuring the independence of the
Judiciary by doing away with the intervention of the Commission on Judicial Department from the Executive and Legislative
Appointments. This insulating process was absent from the Aytona Departments. Such a holding will tie the Judiciary and the Supreme
midnight appointment. 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
Third. As earlier stated, the non-applicability of Section 15, Article President, appoint the next Chief Justice is itself suspect, and
VII to appointments in the Judiciary was confirmed by then Senior cannot ensure judicial independence, because the appointee can
Associate Justice Regalado to the JBC itself when it met on March also become beholden to the appointing authority. In contrast, the
9, 1998 to discuss the question raised by some sectors about the appointment by the incumbent President does not run the same
"constitutionality of xxx appointments" to the Court of Appeals in risk of compromising judicial independence, precisely because her
light of the forthcoming presidential elections. He assured that "on term will end by June 30, 2010.
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 Sixth. The argument has been raised to the effect that there will be
submitted to the President for consideration the nominations for the no need for the incumbent President to appoint during the
eight vacancies in the Court of Appeals.80 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
The fault of Valenzuela was that it accorded no weight and due VIII remaining.
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 The argument is flawed, because it is focused only on the coming
Constitutional Commission. Much of the unfounded doubt about vacancy occurring from Chief Justice Puno's retirement by May 17,
the President's power to appoint during the period of prohibition in 2010. It ignores the need to apply Section 4(1) to every situation of
Section 15, Article VII could have been dispelled since its a vacancy in the Supreme Court.
promulgation on November 9, 1998, had Valenzuela properly
acknowledged and relied on the confirmation of a distinguished The argument also rests on the fallacious assumption that there
member of the Constitutional Commission like Justice Regalado. 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
Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, shown in its comment.
Section15, and Section 16) concern the appointing powers of the
President. 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
Section 14 speaks of the power of the succeeding President to the earliest, or May 14, at the latest. If the regular presidential
revoke appointments made by an Acting President, 81 and evidently elections are held on May 8, the period of the prohibition is 115
refers only to appointments in the Executive Department. It has no days. If such elections are held on May 14, the period of the
application to appointments in the Judiciary, because temporary or prohibition is 109 days. Either period of the prohibition is longer
acting appointments can only undermine the independence of the than the full mandatory 90-day period to fill the vacancy in the
Judiciary due to their being revocable at will.82 The letter and spirit Supreme Court. The result is that there are at least 19 occasions
of the Constitution safeguard that independence. Also, there is no (i.e., the difference between the shortest possible period of the ban
law in the books that authorizes the revocation of appointments in of 109 days and the 90-day mandatory period for appointments) in
the Judiciary. Prior to their mandatory retirement or resignation, which the outgoing President would be in no position to comply with
judges of the first and second level courts and the Justices of the 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 Notwithstanding that there is no pressing need to dwell on this
have intended such an absurdity. In fact, in their deliberations on peripheral matter after the Court has hereby resolved the question
the mandatory period for the appointment of Supreme Court of consequence, we do not find it amiss to confront the matter now.
Justices under Section 4 (1), Article VIII, the framers neither
discussed, nor mentioned, nor referred to the ban against midnight We cannot agree with the posture.
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 A review of Sections 4(1) and 9 of Article VIII shows that the
Supreme Court, or in any of the lower courts. 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,
Seventh. As a matter of fact, in an extreme case, we can even raise which appointments require no confirmation by the Commission on
a doubt on whether a JBC list is necessary at all for the President Appointments. With reference to the Chief Justice, he or she is
- any President - to appoint a Chief Justice if the appointee is to appointed by the President as Chief Justice, and the appointment
come from the ranks of the sitting justices of the Supreme Court. is never in an acting capacity. The express reference to a Chief
Justice abhors the idea that the framers contemplated an Acting
Sec. 9, Article VIII says: Chief Justice to head the membership of the Supreme Court.
Otherwise, they would have simply written so in the Constitution.
xxx. The Members of the Supreme Court xxx shall be appointed by Consequently, to rely on Section 12 of the Judiciary Act of 1948 in
the President from a list of at least three nominees prepared by the order to forestall the imperative need to appoint the next Chief
Judicial and Bar Council for any vacancy. Such appointments need Justice soonest is to defy the plain intent of the Constitution.
no confirmation.
For sure, the framers intended the position of Chief Justice to be
xxx 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
The provision clearly refers to an appointee coming into the to a rare situation in which the new Chief Justice is not yet
Supreme Court from the outside, that is, a non-member of the Court appointed, or in which the incumbent Chief Justice is unable to
aspiring to become one. It speaks of candidates for the Supreme perform the duties and powers of the office. It ought to be
Court, not of those who are already members or sitting justices of remembered, however, that it was enacted because the Chief
the Court, all of whom have previously been vetted by the JBC. Justice appointed under the 1935 Constitution was subject to the
confirmation of the Commission on Appointments, and the
Can the President, therefore, appoint any of the incumbent Justices confirmation process might take longer than expected.
of the Court as Chief Justice?
The appointment of the next Chief Justice by the incumbent
The question is not squarely before us at the moment, but it should President is preferable to having the Associate Justice who is first
lend itself to a deeper analysis if and when circumstances permit. in precedence take over. Under the Constitution, the heads of the
It should be a good issue for the proposed Constitutional Legislative and Executive Departments are popularly elected, and
Convention to consider in the light of Senate President Juan Ponce whoever are elected and proclaimed at once become the leaders
Enrile's statement that the President can appoint the Chief Justice of their respective Departments. However, the lack of any
from among the sitting justices of the Court even without a JBC list. 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
II
absolutely significant to the life of the nation. With the entire
Supreme Court being the Presidential Electoral Tribunal, the Chief
The Judiciary Act of 1948 Justice is the Chairman of the Tribunal. There being no obstacle to
the appointment of the next Chief Justice, aside from its being
The posture has been taken that no urgency exists for the mandatory for the incumbent President to make within the 90-day
President to appoint the successor of Chief Justice Puno, period from May 17, 2010, there is no justification to insist that the
considering that the Judiciary Act of 1948 can still address the successor of Chief Justice Puno be appointed by the next
situation of having the next President appoint the successor. President.

Section 12 of the Judiciary Act of 1948 states: 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
Section 12. Vacancy in Office of Chief Justice. - In case of a assumption of office of his successor, on the other hand. As
vacancy in the office of Chief Justice of the Supreme Court or of summarized in the comment of the OSG, the chronology of
his inability to perform the duties and powers of his office, they shall succession is as follows:
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 1. When Chief Justice Claudio Teehankee retired on April
Justice who succeeds to the office of Chief Justice. 18, 1988, Chief Justice Pedro Yap was appointed on the
same day;
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 2. When Chief Justice Yap retired on July 1, 1988, Chief
Chief Justice is unable to perform his duties and powers. In either Justice Marcelo Fernan was appointed on the same day;
of such circumstances, the duties and powers of the office of the
Chief Justice shall devolve upon the Associate Justice who is first 3. When Chief Justice Fernan resigned on December 7,
in precedence until a new Chief Justice is appointed or until the 1991, Chief Justice Andres Narvasa was appointed the
disability is removed. following day, December 8, 1991;
4. When Chief Justice Narvasa retired on November 29, Constitution for the President to make the appointment. For the
1998, Chief Justice Hilario Davide, Jr. was sworn into JBC to do so will be unconscionable on its part, considering that it
office the following early morning of November 30, 1998; will thereby effectively and illegally deprive the President of the
ample time granted under the Constitution to reflect on the
5. When Chief Justice Davide retired on December 19, qualifications of the nominees named in the list of the JBC before
2005, Chief Justice Artemio Panganiban was appointed making the appointment.
the next day, December 20, 2005; and
The duty of the JBC to submit a list of nominees before the start of
6. When Chief Justice Panganiban retired on December the President's mandatory 90-day period to appoint is ministerial,
6, 2006, Chief Justice Reynato S. Puno took his oath as but its selection of the candidates whose names will be in the list to
Chief Justice at midnight of December 6, 2006.85 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
III vacancy in the Judiciary, because in order to constitute unlawful
neglect of duty, there must be an unjustified delay in performing
Writ of mandamus does not lie against the JBC 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
May the JBC be compelled to submit the list of nominees to the
President.
President?

The distinction between a ministerial act and a discretionary one


Mandamus shall issue when any tribunal, corporation, board,
has been delineated in the following manner:
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 The distinction between a ministerial and discretionary act is well
one addressed to the discretion of the tribunal or delineated. A purely ministerial act or duty is one which an
officer. Mandamus is not available to direct the exercise of a officer or tribunal performs in a given state of facts, in a
judgment or discretion in a particular way.87 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
For mandamus to lie, the following requisites must be complied the law imposes a duty upon a public officer and gives him the
with: (a) the plaintiff has a clear legal right to the act demanded; (b) right to decide how or when the duty shall be performed, such
it must be the duty of the defendant to perform the act, because it duty is discretionary and not ministerial. The duty is ministerial
is mandated by law; (c) the defendant unlawfully neglects the only when the discharge of the same requires neither the
performance of the duty enjoined by law; (d) the act to be exercise of official discretion or judgment.89
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. 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
Section 8(5) and Section 9, Article VIII, mandate the JBC to submit
JBC still has until May 17, 2010, at the latest, within which to submit
a list of at least three nominees to the President for every vacancy the list of nominees to the President to fill the vacancy created by
in the Judiciary: the compulsory retirement of Chief Justice Puno.

Section 8. xxx IV

(5) The Council shall have the principal function of


Writ of prohibition does not lie against the JBC
recommending appointees to the Judiciary. xxx

In light of the foregoing disquisitions, the conclusion is ineluctable


Section 9. The Members of the Supreme Court and judges of lower that only the President can appoint the Chief Justice. Hence,
courts shall be appointed by the President from a list of at least
Soriano's petition for prohibition in G.R. No. 191032, which
three nominees prepared by the Judicial and Bar Council for
proposes to prevent the JBC from intervening in the process of
every vacancy. Such appointments need no confirmation.
nominating the successor of Chief Justice Puno, lacks merit.

For the lower courts, the President shall issue the appointments
On the other hand, the petition for prohibition in G.R. No. 191342
within ninety days from the submission of the list.
is similarly devoid of merit. The challenge mounted against the
composition of the JBC based on the allegedly unconstitutional
However, Section 4(1) and Section 9, Article VIII, mandate the allocation of a vote each to the ex officio members from the Senate
President to fill the vacancy in the Supreme Court within 90 days and the House of Representatives, thereby prejudicing the chances
from the occurrence of the vacancy, and within 90 days from the of some candidates for nomination by raising the minimum number
submission of the list, in the case of the lower courts. The 90-day of votes required in accordance with the rules of the JBC, is not
period is directed at the President, not at the JBC. Thus, the JBC based on the petitioners' actual interest, because they have not
should start the process of selecting the candidates to fill the alleged in their petition that they were nominated to the JBC to fill
vacancy in the Supreme Court before the occurrence of the some vacancies in the Judiciary. Thus, the petitioners lack locus
vacancy. standi on that issue.

Under the Constitution, it is mandatory for the JBC to submit to the WHEREFORE, the Court:
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 1. Dismisses the petitions for certiorari and mandamus in
90-day period from the occurrence of the vacancy. The JBC has no G.R. No. 191002 and G.R. No. 191149, and the petition
discretion to submit the list to the President after the vacancy
for mandamus in G.R. No. 191057 for being premature;
occurs, because that shortens the 90-day period allowed by the
2. Dismisses the petitions for prohibition in G.R. No. 2. Is the JBC’s practice of having members from the Senate and
191032 and G.R. No. 191342 for lack of merit; and the House of Representatives making 8 instead of 7 sitting
members unconstitutional?
3. Grants the petition in A.M. No. 10-2-5-SC and,
accordingly, directs the Judicial and Bar Council: 3. What is the effect of the Court's finding that the current
composition of the JBC is unconstitutional?

(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, Held:
2010;

(b) To prepare the short list of nominees for the


position of Chief Justice; 1. Yes. The Courts’ power of judicial review is subject to several
limitations, namely: (a) there must be an actual case or controversy
(c) To submit to the incumbent President the calling for the exercise of judicial power; (b) the person challenging
short list of nominees for the position of Chief the act must have “standing” to challenge; he must have a personal
Justice on or before May 17, 2010; and and substantial interest in the case, such that he has sustained or
will sustain, direct injury as a result of its enforcement; (c) the
(d) To continue its proceedings for the question of constitutionality must be raised at the earliest possible
nomination of candidates to fill other vacancies opportunity; and (d) the issue of constitutionality must be the very
in the Judiciary and submit to the President the lis mota of the case. Generally, a party will be allowed to litigate
short list of nominees corresponding thereto in only when these conditions sine qua non are present, especially
accordance with this decision. when the constitutionality of an act by a co-equal branch of
government is put in issue.

SO ORDERED. 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
Facts: 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
In 1994, instead of having only 7 members, an eighth member was claim that the composition of the JBC is illegal and unconstitutional
added to the JBC as two representatives from Congress began is an object of concern, not just for a nominee to a judicial post, but
sitting in the JBC – one from the House of Representatives and one for all citizens who have the right to seek judicial intervention for
from the Senate, with each having one-half (1/2) of a vote. Then, rectification of legal blunders.
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 2. Section 8, Article VIII of the 1987 Constitution provides:
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 Section 8. (1) A Judicial and Bar Council is hereby created under
the two houses, the Senate and the House of Representatives, are the supervision of the Supreme Court composed of the Chief
permanent and mandatory components of “Congress,” such that Justice as ex officio Chairman, the Secretary of Justice, and a
the absence of either divests the term of its substantive meaning representative of the Congress as ex officio Members, a
as expressed under the Constitution. Bicameralism, as the system representative of the Integrated Bar, a professor of law, a retired
of choice by the Framers, requires that both houses exercise their Member of the Supreme Court, and a representative of the private
respective powers in the performance of its mandated duty which sector.
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 From a simple reading of the above-quoted provision, it can readily
the entire Congress. 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
Issue: 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.”
1. Are the conditions sine qua non for the exercise of the power of
judicial review have been met in this case? 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 only applies as a matter of equity and fair play. It nullifies the effects
Constitutional Commission had in mind, that is, Congress may of an unconstitutional law by recognizing that the existence of a
designate only one (1) representative to the JBC. Had it been the statute prior to a determination of unconstitutionality is an operative
intention that more than one (1) representative from the legislature fact and may have consequences which cannot always be ignored.
would sit in the JBC, the Framers could have, in no uncertain terms, The past cannot always be erased by a new judicial declaration.
so provided. The doctrine is applicable when a declaration of unconstitutionality
will impose an undue burden on those who have relied on the
One of the primary and basic rules in statutory construction is that invalid law. Thus, it was applied to a criminal case when a
where the words of a statute are clear, plain, and free from declaration of unconstitutionality would put the accused in double
ambiguity, it must be given its literal meaning and applied without jeopardy or would put in limbo the acts done by a municipality in
attempted interpretation. It is a well-settled principle of reliance upon a law creating it.3
constitutional construction that the language employed in the
Constitution must be given their ordinary meaning except where Under the circumstances, the Court finds the exception applicable
technical terms are employed. As much as possible, the words of in this case and holds that notwithstanding its finding of
the Constitution should be understood in the sense they have in unconstitutionality in the current composition of the JBC, all its prior
common use. What it says according to the text of the provision to official actions are nonetheless valid. (Chavez vs. Judicial and Bar
be construed compels acceptance and negates the power of the Council, G.R. No. 202242, July 17, 2012)
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 Republic of the Philippines
whatsoever is made on whether the Senate or the House of SUPREME COURT
Representatives is being referred to, but that, in either case, only a Manila
singular representative may be allowed to sit in the JBC.

It is worthy to note that the seven-member composition of the JBC EN BANC


serves a practical purpose, that is, to provide a solution should
there be a stalemate in voting. This underlying reason leads the G.R. No. 202242 July 17, 2012
Court to conclude that a single vote may not be divided into half
(1/2), between two representatives of Congress, or among any of FRANCISCO I. CHAVEZ, Petitioner,
the sitting members of the JBC for that matter. This unsanctioned vs.
practice can possibly cause disorder and eventually muddle the JUDICIAL AND BAR COUNCIL, SEN. FRANCIS JOSEPH G.
JBC’s voting process, especially in the event a tie is reached. The ESCUDERO and REP. NIEL C. TUPAS, JR.,Respondents.
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 DECISION
every possible scenario, it is sensible to presume that they knew
that an odd composition is the best means to break a voting MENDOZA, J.:
deadlock.
The issue at hand has been in hibernation until the unexpected
The respondents insist that owing to the bicameral nature of
departure of Chief Justice Renato C. Corona on May 29, 2012, and
Congress, the word “Congress” in Section 8(1), Article VIII of the
the nomination of former Solicitor General Francisco I. Chavez
Constitution should be read as including both the Senate and the
(petitioner), as his potential successor, triggered the filing of this
House of Representatives. They theorize that it was so worded
case. The issue has constantly been nagging legal minds, yet
because at the time the said provision was being drafted, the
remained dormant for lack of constitutional challenge.
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 As the matter is of extreme urgency considering the constitutional
to amend Article VIII, Section 8 of the Constitution. deadline in the process of selecting the nominees for the vacant
seat of the Chief Justice, the Court cannot delay the resolution of
It is evident that the definition of “Congress” as a bicameral body the issue a day longer. Relegating it in the meantime to the back
refers to its primary function in government – to legislate. In the burner is not an option.
passage of laws, the Constitution is explicit in the distinction of the
role of each house in the process. The same holds true in Does the first paragraph of Section 8, Article VIII of the 1987
Congress’ non-legislative powers. An inter-play between the two Constitution allow more than one (1) member of Congress to sit in
houses is necessary in the realization of these powers causing a the JBC? Is the practice of having two (2) representatives from
vivid dichotomy that the Court cannot simply discount. This, each house of Congress with one (1) vote each sanctioned by the
however, cannot be said in the case of JBC representation Constitution? These are the pivotal questions to be resolved in this
because no liaison between the two houses exists in the workings original action for prohibition and injunction.
of the JBC. Hence, the term “Congress” must be taken to mean the
entire legislative department.
Long before the naissance of the present Constitution, the annals
of history bear witness to the fact that the exercise of appointing
3. As a general rule, an unconstitutional act is not a law; it confers members of the Judiciary has always been the exclusive
no rights; it imposes no duties; it affords no protection; it creates no prerogative of the executive and legislative branches of the
office; it is inoperative as if it has not been passed at all. This rule, government. Like their progenitor of American origins, both the
however, is not absolute. Under the doctrine of operative facts, Malolos Constitution1 and the 1935 Constitution2 had vested the
actions previous to the declaration of unconstitutionality are legally power to appoint the members of the Judiciary in the President,
recognized. They are not nullified. This is essential in the interest subject to confirmation by the Commission on Appointments. It was
of fair play. during these times that the country became witness to the
deplorable practice of aspirants seeking confirmation of their
The doctrine of operative fact, as an exception to the general rule,
appointment in the Judiciary to ingratiate themselves with the I
members of the legislative body.3
Article VIII, Section 8, Paragraph 1 is clear, definite and
Then, with the fusion of executive and legislative power under the needs no interpretation in that the JBC shall have only one
1973 Constitution,4 the appointment of judges and justices was no representative from Congress.
longer subject to the scrutiny of another body. It was absolute,
except that the appointees must have all the qualifications and II
none of the disqualifications.

The framers of the Constitution clearly envisioned,


Prompted by the clamor to rid the process of appointments to the contemplated and decided on a JBC composed of only
Judiciary from political pressure and partisan activities, 5 the seven (7) members.
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 III
representative of all the stakeholders in the judicial appointment
process and called it the Judicial and Bar Council (JBC). Its Had the framers of the Constitution intended that the JBC
composition, term and functions are provided under Section 8, composed of the one member from the Senate and one
Article VIII of the Constitution, viz: member from the House of Representatives, they could
have easily said so as they did in the other provisions of
Section 8. (1) A Judicial and Bar Council is hereby created under the Constitution.
the supervision of the Supreme Court composed of the Chief
Justice as ex officio Chairman, the Secretary of Justice, and a IV
representative of the Congress as ex officio Members, a
representative of the Integrated Bar, a professor of law, a retired
The composition of the JBC providing for three ex-officio
Member of the Supreme Court, and a representative of the private
members is purposely designed for a balanced
sector.
representation of each of the three branches of the
government.
(2) The regular members of the Council shall be appointed by the
President for a term of four years with the consent of the
V
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, One of the two (2) members of the JBC from Congress
and the representative of the private sector for one year. has no right (not even ½ right) to sit in the said
constitutional body and perform the duties and functions
of a member thereof.
(3) The Clerk of the Supreme Court shall be the Secretary ex officio
of the Council and shall keep a record of its proceedings.
VI
(4) The regular Members of the Council shall receive such
emoluments as may be determined by the Supreme Court. The The JBC cannot conduct valid proceedings as its
Supreme Court shall provide in its annual budget the composition is illegal and unconstitutional.10
appropriations for the Council.
On July 9, 2012, the JBC filed its Comment. 11 It, however,
(5) The Council shall have the principal function of recommending abstained from recommending on how this constitutional issue
appointees to the Judiciary. It may exercise such other functions should be disposed in gracious deference to the wisdom of the
and duties as the Supreme Court may assign to it. Court. Nonetheless, the JBC was more than generous enough to
offer the insights of various personalities previously connected with
it.12
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 Through the Office of the Solicitor General (OSG), respondents
equal opportunity to both houses to sit in the exclusive body, the defended their position as members of the JBC in their
House of Representatives and the Senate would send alternate Comment13 filed on July 12, 2012. According to them, the crux of
representatives to the JBC. In other words, Congress had only one the controversy is the phrase "a representative of
(1) representative. Congress."14 Reverting to the basics, they cite Section 1, Article VI
of the Constitution15 to determine the meaning of the term
In 1994, the composition of the JBC was substantially altered.
Instead of having only seven (7) members, an eighth (8th) member "Congress." It is their theory that the two houses, the Senate and
was added to the JBC as two (2) representatives from Congress the House of Representatives, are permanent and mandatory
began sitting in the JBC - one from the House of Representatives components of "Congress," such that the absence of either divests
and one from the Senate, with each having one-half (1/2) of a the term of its substantive meaning as expressed under the
vote.7 Then, curiously, the JBC En Banc, in separate meetings held Constitution. In simplistic terms, the House of Representatives,
in 2000 and 2001, decided to allow the representatives from the without the Senate and vice-versa, is not
Senate and the House of Representatives one full vote each. 8 At Congress.16 Bicameralism, as the system of choice by the Framers,
present, Senator Francis Joseph G. Escudero and Congressman requires that both houses exercise their respective powers in the
Niel C. Tupas, Jr. (respondents) simultaneously sit in the JBC as performance of its mandated duty which is to legislate. Thus, when
representatives of the legislature. Section 8(1), Article VIII of the Constitution speaks of "a
representative from Congress," it should mean one representative
It is this practice that petitioner has questioned in this each from both Houses which comprise the entire Congress.17
petition,9 setting forth the following
Tracing the subject provision’s history, the respondents claim that
when the JBC was established, the Framers originally envisioned
GROUNDS FOR ALLOWANCE OF THE PETITION
a unicameral legislative body, thereby allocating "a representative because, in the first place, the case lacks the requisites therefor.
of the National Assembly" to the JBC. The phrase, however, was The respondents also question petitioner’s belated filing of the
not modified to petition.24 Being aware that the current composition of the JBC has
been in practice since 1994, petitioner’s silence for eighteen (18)
aptly jive with the change to bicameralism, the legislative system years show that the constitutional issue being raised before the
finally adopted by the Constitutional Commission on July 21, 1986. Court does not comply with the "earliest possible opportunity"
According to respondents, if the Commissioners were made aware requirement.
of the consequence of having a bicameral legislature instead of a
unicameral one, they would have made the corresponding Before addressing the above issues in seriatim, the Court deems it
adjustment in the representation of Congress in the JBC.18 proper to first ascertain the nature of the petition. Pursuant to the
rule that the nature of an action is determined by the allegations
The ambiguity having resulted from a plain case of inadvertence, therein and the character of the relief sought, the Court views the
the respondents urge the Court to look beyond the letter of the petition as essentially an action for declaratory relief under Rule 63
disputed provision because the literal adherence to its language of the 1997 Rules of Civil Procedure.25
would produce absurdity and incongruity to the bicameral nature of
Congress.19 In other words, placing either of the respondents in the The Constitution as the subject matter, and the validity and
JBC will effectively deprive a house of Congress of its construction of Section 8 (1), Article VIII as the issue raised, the
representation. In the same vein, the electorate represented by petition should properly be considered as that which would result
Members of Congress will lose their only opportunity to participate in the adjudication of rights sans the execution process because
in the nomination process for the members of the Judiciary, the only relief to be granted is the very declaration of the rights
effectively diminishing the republican nature of the government. 20 under the document sought to be construed. It being so, the original
jurisdiction over the petition lies with the appropriate Regional Trial
The respondents further argue that the allowance of two (2) Court (RTC). Notwithstanding the fact that only questions of law
representatives of Congress to be members of the JBC does not are raised in the petition, an action for declaratory relief is not
render the latter’s purpose nugatory. While they admit that the among those within the original jurisdiction of this Court as provided
purpose in creating the JBC was to insulate appointments to the in Section 5, Article VIII of the Constitution.26
Judiciary from political influence, they likewise cautioned the Court
that this constitutional vision did not intend to entirely preclude At any rate, due to its serious implications, not only to government
political factor in said appointments. Therefore, no evil should be processes involved but also to the sanctity of the Constitution, the
perceived in the current set-up of the JBC because two (2) Court deems it more prudent to take cognizance of it. After all, the
members coming from Congress, whose membership to certain petition is also for prohibition under Rule 65 seeking to enjoin
political parties is irrelevant, does not necessarily amplify political Congress from sending two (2) representatives with one (1) full
partisanship in the JBC. In fact, the presence of two (2) members vote each to the JBC.
from Congress will most likely provide balance as against the other
six (6) members who are undeniably presidential appointees.21 The Courts’ power of judicial review, like almost all other powers
conferred by the Constitution, is subject to several limitations,
The Issues namely: (1) there must be an actual case or controversy calling for
the exercise of judicial power; (2) the person challenging the act
In resolving the procedural and substantive issues arising from the must have "standing" to challenge; he must have a personal and
petition, as well as the myriad of counter-arguments proffered by substantial interest in the case, such that he has sustained or will
the respondents, the Court synthesized them into two: 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
(1) Whether or not the conditions sine qua non for the lis mota of the case.27 Generally, a party will be allowed to litigate
exercise of the power of judicial review have been met in only when these conditions sine qua non are present, especially
this case; and when the constitutionality of an act by a co-equal branch of
government is put in issue.
(2) Whether or not the current practice of the JBC to
perform its functions with eight (8) members, two (2) of Anent locus standi, the question to be answered is this: does the
whom are members of Congress, runs counter to the party possess a personal stake in the outcome of the controversy
letter and spirit of the 1987 Constitution. 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.
The Power of Judicial Review 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
In its Comment, the JBC submits that petitioner is clothed
accorded standing to sue, provided that the following requirements
with locus standi to file the petition, as a citizen and taxpayer, who
are met: (1) cases involve constitutional issues; (2) for taxpayers,
has been nominated to the position of Chief Justice.22 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
For the respondents, however, petitioner has no "real interest" in showing of obvious interest in the validity of the election law in
questioning the constitutionality of the JBC’s current question; (4) for concerned citizens, there must be a showing that
composition.23 As outlined in jurisprudence, it is well-settled that the issues raised are of transcendental importance which must be
for locus standi to lie, petitioner must exhibit that he has been settled early; and (5) for legislators, there must be a claim that the
denied, or is about to be denied, of a personal right or privilege to official action complained of infringes upon their prerogatives as
which he is entitled. Here, petitioner failed to manifest his legislators.
acceptance of his recommendation to the position of Chief Justice,
thereby divesting him of a substantial interest in the controversy. In public suits, the plaintiff, representing the general public, asserts
Without his name in the official list of applicants for the post, the a "public right" in assailing an allegedly illegal official action. The
respondents claim that there is no personal stake on the part of
plaintiff may be a person who is affected no differently from any
petitioner that would justify his outcry of unconstitutionality.
other person, and can be suing as a "stranger," or as a "citizen" or
Moreover, the mere allegation that this case is of transcendental "taxpayer." Thus, taxpayers have been allowed to sue where there
importance does not excuse the waiver of the rule on locus standi,
is a claim that public funds are illegally disbursed or that public
money is being deflected to any improper purpose, or that public Section 8. (1) A Judicial and Bar Council is hereby created under
funds are wasted through the enforcement of an invalid or the supervision of the Supreme Court composed of the Chief
unconstitutional law. Of greater import than the damage caused by Justice as ex officio Chairman, the Secretary of Justice, and a
the illegal expenditure of public funds is the mortal wound inflicted representative of the Congress as ex officio Members, a
upon the fundamental law by the enforcement of an invalid representative of the Integrated Bar, a professor of law, a retired
statute.29 Member of the Supreme Court, and a representative of the private
sector.
In this case, petitioner seeks judicial intervention as a taxpayer, a
concerned citizen and a nominee to the position of Chief Justice of From a simple reading of the above-quoted provision, it can readily
the Supreme Court. As a taxpayer, petitioner invokes his right to be discerned that the provision is clear and unambiguous. The first
demand that the taxes he and the rest of the citizenry have been paragraph calls for the creation of a JBC and places the same
paying to the government are spent for lawful purposes. According under the supervision of the Court. Then it goes to its composition
to petitioner, "since the JBC derives financial support for its where the regular members are enumerated: a representative of
functions, operation and proceedings from taxes paid, petitioner the Integrated Bar, a professor of law, a retired member of the
possesses as taxpayer both right and legal standing to demand Court and a representative from the private sector. On the second
that the JBC’s proceedings are not tainted with illegality and that its part lies the crux of the present controversy. It enumerates the ex
composition and actions do not violate the Constitution." 30 officio or special members of the JBC composed of the Chief
Justice, who shall be its Chairman, the Secretary of Justice and "a
Notably, petitioner takes pains in enumerating past actions that he representative of Congress."
had brought before the Court where his legal standing was
sustained. Although this inventory is unnecessary to As petitioner correctly posits, the use of the singular letter "a"
establish locus standi because obviously, not every case before preceding "representative of Congress" is unequivocal and leaves
the Court exhibits similar issues and facts, the Court recognizes no room for any other construction. It is indicative of what the
the petitioner’s right to sue in this case. Clearly, petitioner has the members of the Constitutional Commission had in mind, that is,
legal standing to bring the present action because he has a Congress may designate only one (1) representative to the JBC.
personal stake in the outcome of this controversy. 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
The Court disagrees with the respondents’ contention that uncertain terms, so provided.
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 One of the primary and basic rules in statutory construction is that
"personal stake" on the case is imperative to have locus standi, this where the words of a statute are clear, plain, and free from
is not to say that only official nominees for the post of Chief Justice ambiguity, it must be given its literal meaning and applied without
can come to the Court and question the JBC composition for being attempted interpretation.32 It is a well-settled principle of
unconstitutional. The JBC likewise screens and nominates other constitutional construction that the language employed in the
members of the Judiciary. Albeit heavily publicized in this regard, Constitution must be given their ordinary meaning except where
the JBC’s duty is not at all limited to the nominations for the highest technical terms are employed. As much as possible, the words of
magistrate in the land. A vast number of aspirants to judicial posts the Constitution should be understood in the sense they have in
all over the country may be affected by the Court’s ruling. More common use. What it says according to the text of the provision to
importantly, the legality of the very process of nominations to the be construed compels acceptance and negates the power of the
positions in the Judiciary is the nucleus of the controversy. The courts to alter it, based on the postulate that the framers and the
Court considers this a constitutional issue that must be passed people mean what they say.33 Verba legis non est recedendum –
upon, lest a constitutional process be plagued by misgivings, from the words of a statute there should be no departure.34
doubts and worse, mistrust. Hence, a citizen has a right to bring
this question to the Court, clothed with legal standing and at the The raison d’ être for the rule is essentially two-fold: First, because
same time, armed with issues of transcendental importance to it is assumed that the words in which constitutional provisions are
society. The claim that the composition of the JBC is illegal and couched express the objective sought to be attained;35 and second,
unconstitutional is an object of concern, not just for a nominee to a because the Constitution is not primarily a lawyer’s document but
judicial post, but for all citizens who have the right to seek judicial essentially that of the people, in whose consciousness it should
intervention for rectification of legal blunders. ever be present as an important condition for the rule of law to
prevail. 36
With respect to the question of transcendental importance, it is not
difficult to perceive from the opposing arguments of the parties that Moreover, under the maxim noscitur a sociis, where a particular
the determinants established in jurisprudence are attendant in this word or phrase is ambiguous in itself or is equally susceptible of
case: (1) the character of the funds or other assets involved in the various meanings, its correct construction may be made clear and
case; (2) the presence of a clear case of disregard of a specific by considering the company of words in which it is founded
constitutional or statutory prohibition by the public respondent or with which it is associated.37 This is because a word or phrase in
agency or instrumentality of the government; and (3) the lack of any a statute is always used in association with other words or phrases,
other party with a more direct and specific interest in the questions and its meaning may, thus, be modified or restricted by the
being raised.31 The allegations of constitutional violations in this latter.38 The particular words, clauses and phrases should not be
case are not empty attacks on the wisdom of the other branches of studied as detached and isolated expressions, but the whole and
the government. The allegations are substantiated by facts and, every part of the statute must be considered in fixing the meaning
therefore, deserve an evaluation from the Court. The Court need of any of its parts and in order to produce a harmonious whole. A
not elaborate on the legal and societal ramifications of the issues statute must be so construed as to harmonize and give effect to all
raised. It cannot be gainsaid that the JBC is a constitutional its provisions whenever possible.39 In short, every meaning to be
innovation crucial in the selection of the magistrates in our judicial given to each word or phrase must be ascertained from the context
system. 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
The Composition of the JBC meaning may be modified or restricted by the latter.

Central to the resolution of the foregoing petition is an Applying the foregoing principle to this case, it becomes apparent
understanding of the composition of the JBC as stated in the first that the word "Congress" used in Article VIII, Section 8(1) of the
paragraph of Section 8, Article VIII of the Constitution. It reads: Constitution is used in its generic sense. No particular allusion
whatsoever is made on whether the Senate or the House of Service…even ambassadors, generals of the Army will not come
Representatives is being referred to, but that, in either case, only a under this restriction. Why are we going to segregate the Judiciary
singular representative may be allowed to sit in the JBC. The from the rest of our government in the appointment of high-ranking
foregoing declaration is but sensible, since, as pointed out by an officials?
esteemed former member of the Court and consultant of the JBC
in his memorandum,40 "from the enumeration of the membership of Another reason is that this Council will be ineffective. It will just
the JBC, it is patent that each category of members pertained to a besmirch the honor of our President without being effective at all
single individual only."41 because this Council will be under the influence of the President.
Four out of seven are appointees of the President and they can be
Indeed, the spirit and reason of the statute may be passed upon reappointed when their term ends. Therefore, they would be
where a literal meaning would lead to absurdity, contradiction, kowtow the President. A fifth member is the Minister of Justice, an
injustice, or defeat the clear purpose of the lawmakers. 42 Not any alter ego of the President. Another member represents the
of these instances, however, is present in the case at Legislature. In all probability, the controlling part in the legislature
bench. Considering that the language of the subject constitutional belongs to the President and, therefore, this representative form
provision is plain and unambiguous, there is no need to resort the National Assembly is also under the influence of the President.
extrinsic aids such as records of the Constitutional Commission. 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
Nevertheless, even if the Court should proceed to look into the he will be influence anyway by the President. 44 [Emphases
minds of the members of the Constitutional Commission, it is supplied]
undeniable from the records thereof that it was intended that the
JBC be composed of seven (7) members only. Thus: At this juncture, it is worthy to note that the seven-member
composition of the JBC serves a practical purpose, that is, to
MR. RODRIGO: Let me go to another point then. 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
On page 2, Section 5, there is a novel provision about the Congress, or among any of the sitting members of the JBC for that
appointments of members of the Supreme Court and judges of the matter. This unsanctioned practice can possibly cause disorder
lower courts. At present it is the President who appoints them. If and eventually muddle the JBC’s voting process, especially in the
there is a Commission on Appointments, then it is the President event a tie is reached. The aforesaid purpose would then be
with the confirmation of the Commission on Appointment. In this rendered illusory, defeating the precise mechanism which the
proposal, we would like to establish a new office, a sort of a board Constitution itself created. While it would be unreasonable to
composed of seven members called the Judicial and Bar Council. expect that the Framers provide for every possible scenario, it is
And while the President will still appoint the member of the sensible to presume that they knew that an odd composition is the
judiciary, he will be limited to the recommendees of this Council. best means to break a voting deadlock.

xxx xxx xxx The respondents insist that owing to the bicameral nature of
Congress, the word "Congress" in Section 8(1), Article VIII of the
MR. RODRIGO. Of the seven members of the Judicial and Bar Constitution should be read as including both the Senate and the
Council, the President appoints four of them who are regular House of Representatives. They theorize that it was so worded
members. because at the time the said provision was being drafted, the
Framers initially intended a unicameral form of Congress.
xxx xxx xxx
Then, when the Constitutional Commission eventually adopted a
bicameral form of Congress, the Framers, through oversight, failed
MR. CONCEPCION. The only purpose of the Committee is to to amend Article VIII, Section 8 of the Constitution.45 On this score,
eliminate partisan politics.43 the Court cites the insightful analysis of another member of the
Court and JBC consultant, retired Justice Consuelo Ynares-
xxx xxx xxx Santiago.46 Thus:

MR. RODRIGO. If my amendment is approved, then the provision A perusal of the records of the Constitutional Commission reveals
will be exactly the same as the provision in the 1935 Constitution, that the composition of the JBC reflects the Commission’s desire
Article VIII, Section 5. "to have in the Council a representation for the major elements of
the community." xxx The ex-officio members of the Council consist
xxx xxx xxx 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
If we do not remove the proposed amendment on the creation of 8(1) was to treat each ex-officio member as representing one
the Judicial and Bar Council, this will be a diminution of the co-equal branch of government. xxxThus, the JBC was designed
appointing power of the highest magistrate of the land, of the to have seven voting members with the three ex-officio members
having equal say in the choice of judicial nominees.
President of the Philippines elected by all the Filipino people. The
appointing power will be limited by a group of seven people who xxx xxx xxx
are not elected by the people but only appointed.
No parallelism can be drawn between the representative of
Mr. Presiding Officer, if this Council is created, there will be no Congress in the JBC and the exercise by Congress of its
uniformity in our constitutional provisions on appointments. The legislative powers under Article VI and constituent powers
members of the Judiciary will be segregated from the rest of the under Article XVII of the Constitution. Congress, in relation to
government. Even a municipal judge cannot be appointed by the the executive and judicial branches of government, is
President except upon recommendation or nomination of the three constitutionally treated as another co-equal branch of in the matter
names by this Committee of seven people, commissioners of the of its representative in the JBC. On the other hand, the exercise of
Commission on Elections, the COA and the Commission on Civil legislative and constituent powers requires the Senate and House
of Representatives to coordinate and act as distinct bodies in The present imbalance in voting power between the Legislative and
furtherance of Congress’ role under our constitutional the other sectors represented in the JBC must be corrected
scheme. While the latter justifies and, in fact, necessitates the especially when considered vis-à-vis the avowed purpose for its
separateness of the two houses of Congress as they relate creation, i.e., to insulate the appointments in the Judiciary against
inter se, no such dichotomy need be made when Congress political influence. By allowing both houses of Congress to have a
interacts with the other two co-equal branches of government. representative in the JBC and by giving each representative one
(1) vote in the Council, Congress, as compared to the other
It is more in keeping with the co-equal nature of the three members of the JBC, is accorded greater and unwarranted
governmental branches to assign the same weight to influence in the appointment of judges.54[Emphasis supplied]
considerations that any of its representatives may have
regarding aspiring nominees to the judiciary. The It is clear, therefore, that the Constitution mandates that the JBC
representatives of the Senate and the House of be composed of seven (7) members only. Thus, any inclusion of
Representatives act as such for one branch and should not another member, whether with one whole vote or half (1/2) of it,
have any more quantitative influence as the other branches in goes against that mandate. Section 8(1), Article VIII of the
the exercise of prerogatives evenly bestowed upon the Constitution, providing Congress with an equal voice with other
three. Sound reason and principle of equality among the three members of the JBC in recommending appointees to the Judiciary
branches support this conclusion. [Emphases and underscoring is explicit. Any circumvention of the constitutional mandate should
supplied] not be countenanced for the Constitution is the supreme law of the
land. The Constitution is the basic and paramount law to which all
More than the reasoning provided in the above discussed rules of other laws must conform and to which all persons, including the
constitutional construction, the Court finds the above thesis as the highest officials of the land, must defer. Constitutional doctrines
paramount justification of the Court’s conclusion that "Congress," must remain steadfast no matter what may be the tides of time. It
in the context of JBC representation, should be considered as one cannot be simply made to sway and accommodate the call of
body. It is evident that the definition of "Congress" as a bicameral situations and much more tailor itself to the whims and caprices of
body refers to its primary function in government - to legislate.47 In the government and the people who run it. 55 Hence, any act of the
the passage of laws, the Constitution is explicit in the distinction of government or of a public official or employee which is contrary to
the role of each house in the process. The same holds true in the Constitution is illegal, null and void.
Congress’ non-legislative powers such as, inter alia, the power of
appropriation,48 the declaration of an existence of a state of As to the effect of the Court’s finding that the current composition
war,49 canvassing of electoral returns for the President and Vice- of the JBC is unconstitutional, it bears mentioning that as a general
President,50 and impeachment.51 In the exercise of these powers, rule, an unconstitutional act is not a law; it confers no rights; it
the Constitution employs precise language in laying down the roles imposes no duties; it affords no protection; it creates no office; it is
which a particular house plays, regardless of whether the two inoperative as if it has not been passed at all.56 This rule, however,
houses consummate an official act by voting jointly or separately. is not absolute. In the interest of fair play under the doctrine of
An inter-play between the two houses is necessary in the operative facts, actions previous to the declaration of
realization of these powers causing a vivid dichotomy that the Court unconstitutionality are legally recognized. They are not nullified. In
cannot simply discount. Verily, each house is constitutionally Planters Products, Inc. v. Fertiphil Corporation,57the Court
granted with powers and functions peculiar to its nature and with explained:
keen consideration to 1) its relationship with the other chamber;
and 2) in consonance with the principle of checks and balances, to The doctrine of operative fact, as an exception to the general rule,
the other branches of government. only applies as a matter of equity and fair play.1âwphi1 It nullifies
the effects of an unconstitutional law by recognizing that the
This, however, cannot be said in the case of JBC representation existence of a statute prior to a determination of unconstitutionality
because no liaison between the two houses exists in the workings is an operative fact and may have consequences which cannot
of the JBC. No mechanism is required between the Senate and the always be ignored. The past cannot always be erased by a new
House of Representatives in the screening and nomination of judicial declaration.
judicial officers. Hence, the term "Congress" must be taken to
mean the entirelegislative department. A fortiori, a pretext of The doctrine is applicable when a declaration of unconstitutionality
oversight cannot prevail over the more pragmatic scheme which will impose an undue burden on those who have relied on the
the Constitution laid with firmness, that is, that the JBC has a seat invalid law. Thus, it was applied to a criminal case when a
for a single representative of Congress, as one of the co-equal declaration of unconstitutionality would put the accused in double
branches of government. jeopardy or would put in limbo the acts done by a municipality in
reliance upon a law creating it.
Doubtless, the Framers of our Constitution intended to create a
JBC as an innovative solution in response to the public clamor in Considering the circumstances, the Court finds the exception
favor of eliminating politics in the appointment of members of the applicable in this case and holds that notwithstanding its finding of
Judiciary.52 To ensure judicial independence, they adopted a unconstitutionality in the current composition of the JBC, all its prior
holistic approach and hoped that, in creating a JBC, the private official actions are nonetheless valid.
sector and the three branches of government would have an active
role and equal voice in the selection of the members of the
Judiciary. 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
Therefore, to allow the Legislature to have more quantitative province of the Court and is best left to the determination of
influence in the JBC by having more than one voice speak, whether Congress.
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 Finally, while the Court finds wisdom in respondents' contention
which is enshrined in the Constitution."53 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
To quote one former Secretary of Justice: 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 corpus; A. What are the parameters for review? B. Who has the
solemn power and duty of the Court to interpret and apply the law burden of proof? C. What is the threshold of evidence?
does not include the power to correct, by reading into the law what [5] Whether the exercise of the power of judicial review by this
is not written therein. Court involves the calibration of graduated powers granted the
President as Commander-in-Chief?
WHEREFORE, the petition is GRANTED. The current numerical [6] W/N Proclamation No. 216 of 23 May 2017 may be considered,
composition of the Judicial and Bar Council IS declared vague and thus null and void: a. with its inclusion of “other rebel
UNCONSTITUTIONAL. The Judicial and Bar Council is hereby groups;” or b. since it has no guidelines specifying its actual
enjoined to reconstitute itself so that only one ( 1) member of operational parameters within the entire Mindanao region;
Congress will sit as a representative in its proceedings, in [7] W/N the armed hostilities mentioned in Proclamation No. 216
accordance with Section 8( 1 ), Article 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
VIII of the 1987 Constitution. corpus in the entire Mindanao region;
[8] W/N terrorism or acts attributable to terrorism are equivalent to
This disposition is immediately executory. actual rebellion and the requirements of public safety sufficient to
declare martial law or suspend the privilege of the writ of habeas
corpus; and
SO ORDERED.
[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
FACTS: paragraph of Section 18, Article VII is sui generis. It is a special and
Effective May 23, 2017, and for a period not exceeding 60 days, specific jurisdiction of the Supreme Court different from those
President Rodrigo Roa Duterte issued Proclamation No. 216 enumerated in Sections 1 and 5 of Article VIII. The phrase “in an
declaring a state of martial law and suspending the privilege of the appropriate proceeding” appearing on the third paragraph of
writ of habeas corpus in the whole of Mindanao. Section 18, Article VII refers to any action initiated by a citizen for
In accordance with Section 18, Article VII of the Constitution, the the purpose of questioning the sufficiency of the factual basis of the
President, on May 25, 2017, submitted to Congress a written exercise of the Chief Executive’s emergency powers, as in these
Report on the factual basis of Proclamation No. 216. cases. It could be denominated as a complaint, a petition, or a
The Report pointed out that for decades, Mindanao has been matter to be resolved by the Court.
plagued with rebellion and lawless violence which only escalated 2. a.) In determining the sufficiency of the factual basis of the
and worsened with the passing of time. declaration and/or the suspension, the Court should look into the
On May 23, 2017, as the President stated in his Report, the Maute full complement or totality of the factual basis, and not piecemeal
terrorist group took over a hospital in Marawi City; established or individually. Neither should the Court expect absolute
several checkpoints within the city; burned down certain correctness of the facts stated in the proclamation and in the written
government and private facilities and inflicted casualties on the part Report as the President could not be expected to verify the
of Government forces; and started flying the flag of the Islamic accuracy and veracity of all facts reported to him due to the urgency
State of Iraq and Syria (ISIS) in several areas, thereby indicating a of the situation. To require him otherwise would impede the
removal of allegiance from the Philippine Government and their process of his decision-making.
capability to deprive the duly constituted authorities – the b.) The recommendation of the Defense Secretary is not a
President, foremost – of their powers and prerogatives. condition for the declaration of martial law or suspension of the
The Report also highlighted the strategic location of Marawi City; privilege of the writ of habeas corpus. A plain reading of Section
the role it plays in Mindanao, and the Philippines as a whole; and 18, Article VII of the Constitution shows that the President’s power
the possible tragic repercussions once it falls under the control of to declare martial law is not subject to any condition except for the
the lawless groups. requirements of actual invasion or rebellion and that public safety
After the submission of the Report and the briefings, the Senate requires it. Besides, it would be contrary to common sense if the
declared that it found “no compelling reason to revoke decision of the President is made dependent on the
Proclamation 216. recommendation of his mere alter ego. Only on the President can
The Lagman Group, the Cullamat Group and the Mohamad Group exercise of the powers of the Commander-in-Chief.
petitioned the Supreme Court, questioning the factual basis of c.) As Commander-in-Chief, the President has the sole discretion
President Duterte’s Proclamation of martial law. to declare martial law and/or to suspend the privilege of the writ of
ISSUES: habeas corpus, subject to the revocation of Congress and the
[1] W/N the petitions are the “appropriate proceeding” covered by review of this Court. Since the exercise of these powers is a
paragraph 3, Section 18, Article VII of the Constitution sufficient to judgment call of the President, the determination of this Court as to
invoke the mode of review required by the Court; whether there is sufficient factual basis for the exercise of such,
[2] A. Is the President required to be factually correct or only not must be based only on facts or information known by or available
arbitrary in his appreciation of facts? B. Is the President required to to the President at the time he made the declaration or suspension
obtain the favorable recommendation thereon bf the Secretary of which facts or information are found in the proclamation as well as
National Defense? C. Is the President is required to take into the written Report submitted by him to Congress. These may be
account only the situation at the time of the proclamation, even if based on the situation existing at the time the declaration was
subsequent events prove the situation to have not been accurately made or past events. As to how far the past events should be from
reported? the present depends on the President.
[3] Is the power of this Court to review the sufficiency of the factual 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 basis of the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus is independent of the actual privilege of the writ of habeas corpus under Section 18, Article VII
actions that have been taken by Congress jointly or separately; of the 1987 Constitution is independent of the actions taken by
[4] W/N there were sufficient factual [basis] for the proclamation of Congress.
martial law or the suspension of the privilege of the writ of habeas
The Court may strike down the presidential proclamation in an only against government forces or establishment but likewise
appropriate proceeding filed by any citizen on the ground of lack against civilians and their properties. There were bomb threats,
sufficient factual basis. On the other hand, Congress may revoke road blockades, burning of schools and churches, hostages and
the proclamation or suspension, which revocation shall not be set killings of civilians, forced entry of young male Muslims to the
aside by the President. The power to review by the Court and the group, there were hampering of medical services and delivery of
power to revoke by Congress are not only totally different but basic services, reinforcement of government troops, among others.
likewise independent from each other although concededly, they These particular scenarios convinced the President that the
have the same trajectory, which is, the nullification of the atrocities had already escalated to a level that risked public safety
presidential proclamation. and thus impelled him to declare martial law and suspend the
4. The parameters for determining the sufficiency of factual basis privilege of the writ of habeas corpus.
are as follows: l) actual rebellion or invasion; 2) public safety 9. a.) The calling out power is in a different category from the power
requires it; the first two requirements must concur; and 3) there is to declare martial law and the power to suspend the privilege of the
probable cause for the President to believe that there is actual writ of habeas corpus; nullification of Proclamation No. 216 will not
rebellion or invasion. affect Proclamation No. 55.
The President needs only to satisfy probable cause as the standard The President may exercise the power to call out the Armed Forces
of proof in determining the existence of either invasion or rebellion independently of the power to suspend the privilege of the writ of
for purposes of declaring martial law, and that probable cause is habeas corpus and to declare martial law. Even so, the Court’s
the most reasonable, most practical and most expedient standard review of the President’s declaration of martial law and his calling
by which the President can fully ascertain the existence or non- out the Armed Forces necessarily entails separate proceedings
existence of rebellion necessary for a declaration of martial law or instituted for that particular purpose.
suspension of the writ. To require him to satisfy a higher standard b.) Neither would the nullification of Proclamation No. 216 result in
of proof would restrict the exercise of his emergency powers. the nullification of the acts of the President done pursuant thereto.
5. The judicial power to review the sufficiency of factual basis of the Under the operative fact doctrine,” the unconstitutional statute is
declaration of martial law or the suspension of the privilege of the recognized as an “operative fact” before it is declared
writ of habeas corpus does not extend to the calibration of the unconstitutional.
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 Verily, the Court upholds the validity of the declaration of martial
incursion into the exclusive domain of the Executive and an law and suspension of the privilege of the writ of habeas corpus in
infringement on the prerogative that solely, at least initially, lies with the entire Mindanao region. The Court FINDS sufficient factual
the President. bases for the issuance of Proclamation No. 216 and DECLARES it
6. a.) Inclusion of “other rebel groups ” does not make Proclamation as CONSTITUTIONAL. Accordingly, the consolidated Petitions are
No. 216 vague. The term “other rebel groups” in Proclamation No. hereby DISMISSED.
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 Political Law. Proclamation No. 216 declaring a state of martial
“other rebel groups” found in Proclamation No. 55, which it cited by law and suspending the privilege of the writ of habeas corpus in the
way of reference in its Whereas clauses. whole of Mindanao. Paragraph 3, Section 18, Article VII of the
b.) Lack of guidelines/operational parameters does not make Constitution
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 Meaning of Locus Standi: “[T]he only requisite for standing to
the implementing and/or operational guidelines, general orders, challenge the validity of the suspension is that the challenger
arrest orders and other orders issued after the proclamation for be a citizen. He need not even be a taxpayer.
being irrelevant to its review. Any act committed under the said
orders in violation of the Constitution and the laws should be Sufficiency of factual basis of the proclamation of martial
resolved in a separate proceeding. Finally, there is a risk that if the law. A plain reading of the afore-quoted Section 18, Article VII
Court wades into these areas, it would be deemed as trespassing reveals that it specifically grants authority to the Court to determine
into the sphere that is reserved exclusively for Congress in the the sufficiency of the factual basis of the proclamation of martial
exercise of its power to revoke. law or suspension of the privilege of the writ of habeas corpus.
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
The unique features of the third paragraph of Section 18,
facts available to him that there was an armed public uprising, the
Article VII clearly indicate that it should be treated as sui
culpable purpose of which was to remove from the allegiance to
generis separate and different from those enumerated in
the Philippine Government a portion of its territory and to deprive
Article VIII.
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. The President as the Commander-in-Chief wields the
After all, what the President needs to satisfy is only the standard of extraordinary powers of: a) calling out the armed forces; b)
probable cause for a valid declaration of martial law and suspending the privilege of the writ of habeas corpus; and c)
suspension of the privilege of the writ of habeas corpus. declaring martial law. These powers may be resorted to only
8. Terrorism neither negates nor absorbs rebellion. Rebellion may under specified conditions.
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 Extraordinary powers of the President distinguished.
committed.
Meanwhile, public safety requires the declaration of martial law and Among the three extraordinary powers, the calling out power
the suspension of the privilege of the writ of habeas corpus in the is the most benign and involves ordinary police action The
whole of Mindanao. For a declaration of martial law or suspension President may resort to this extraordinary power whenever it
of the privilege of the writ of habeas corpus to be valid, there must becomes necessary to prevent or suppress lawless violence,
be concurrence of 1.) actual rebellion or invasion and 2.) the public invasion, or rebellion. “[T]he power to call is fully
safety requirement. discretionary to the President;”the only limitations being that
In his report, the President noted that the acts of violence he acts within permissible constitutional boundaries or in a
perpetrated by the ASG and the Maute Group were directed not manner not constituting grave abuse of discretion.In fact,
“the actual use to which the President puts the armed forces of his powers and prerogatives to enforce the laws of the land and
is x x x not subject to judicial review.” to maintain public order and safety in Mindanao, constituting the
crime of rebellion; and
The extraordinary powers of suspending the privilege of the
writ of habeas corpus and/or declaring martial law may be WHEREAS, this recent attack shows the capability of the Maute
exercised only when there is actual invasion or rebellion, and group and other rebel groups to sow terror, and cause death and
public safety requires it. The 1987 Constitution imposed the damage to property not only in Lanao del Sur but also in other parts
following limits in the exercise of these powers: “(1) a time of Mindanao.
limit of sixty days; (2) review and possible revocation by
Congress; [and] (3) review and possible nullification by the NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of
Supreme Court.” 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


The void-for-vagueness doctrine holds that a law is facially Mindanao group of islands for a period not exceeding sixty days,
invalid if “men of common intelligence must necessarily effective as of the date hereof.
guess at its meaning and differ as to its application.
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.
Edcel Lagman et al. vs. President Roa Duterte et al. , G.R. No.
231658, July 4, 2017 DONE in the Russian Federation, this 23rd day of May in the year
of our Lord, Two Thousand and Seventeen.
Facts
Three (3) Petitions were filed questioning the legality of the said
President Rodrigo Roa Duterte issued Proclamation No. declaration, to wit:
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. A) G.R. No. 231658 (Lagman Petition)
2017 for a period not exceeding 60 days.
On June 5, 2017, Representatives Edcel C. Lagman, Tomasito S.
The full text of Proclamation No. 216 reads as follows: Villarin, Gary C. Alejano, Emmanuel A. Billones, and Teddy
Brawner Baguilat, Jr. filed a Petition11 Under the Third Paragraph
WHEREAS, Proclamation No. 55, series of 2016, was issued on of Section 18 of Article VII of the 1987 Constitution.
04 September 2016 declaring a state of national emergency on
account of lawless violence in Mindanao; First, the Lagman Petition claims that the declaration of
martial law has no sufficient factual basis because there is no
WHEREAS, Section 18, Article VII of the Constitution provides that rebellion or invasion in Marawi City or in any part of
‘x x x In case of invasion or rebellion, when the public safety Mindanao. It argues that acts of terrorism in Mindanao do not
requires it, he (the President) may, for a period not exceeding constitute rebellion12 since there is no proof that its purpose is to
sixty days, suspend the privilege of the writ of habeas remove Mindanao or any part thereof from allegiance to the
corpus or place the Philippines or any part thereof under Philippines, its laws, or its territory.1
martial law x x x’;
Xxx xxx xxx
WHEREAS, Article 134 of the Revised Penal Code, as amended
by R.A. No. 6968, provides that ‘the crime of rebellion or Second, the Lagman Petition claims that the declaration of martial
insurrection is committed by rising and taking arms against law has no sufficient factual basis because the President’s Report
the Government for the purpose of removing from the contained “false, inaccurate, contrived and hyperbolic accounts”. 21
allegiance to said Government or its laws, the territory of the
Republic of the Philippines or any part thereof, of any body of Third, the Lagman Petition claims that the declaration of martial
land, naval or other armed forces, or depriving the Chief law has no sufficient factual basis since the President’s Report
Executive or the Legislature, wholly or partially, of any of their mistakenly included the attack on the military outpost in Butig,
powers or prerogatives’; Lanao del Sur in February 2016, the mass jail break in Marawi City
in August 2016, the Zamboanga siege, the Davao market bombing,
WHEREAS, part of the reasons for the issuance of Proclamation the Mamasapano carnage and other bombing incidents in
No. 55 was the series of violent acts committed by the Maute Cotabato, Sultan Kudarat, and Basilan, as additional factual bases
terrorist group such as the attack on the military outpost in for the proclamation of martial law. It contends that these events
Butig, Lanao del Sur in February 2016, killing and wounding either took place long before the conflict in Marawi City began, had
several soldiers, and the mass jailbreak in Marawi City in long been resolved, or with the culprits having already been
August 2016, freeing their arrested comrades and other arrested.26
detainees;
Fourth, the Lagman Petition claims that the declaration of martial
WHEREAS, today 23 May 2017, the same Maute terrorist group law has no sufficient factual basis considering that the President
has taken over a hospital in Marawi City, Lanao del Sur, acted alone and did not consult the military establishment or any
established several checkpoints within the City, burned down ranking official27 before making the proclamation.
certain government and private facilities and inflicted casualties on
the part of Government forces, and started flying the flag of the Finally, the Lagman Petition claims that the President’s
Islamic State of Iraq and Syria (ISIS) in several areas, thereby proclamation of martial law lacks sufficient factual basis owing to
openly attempting to remove from the allegiance to the Philippine the fact that during the presentation before the Committee of the
Government this part of Mindanao and deprive the Chief Executive
Whole of the House of Representatives, it was shown that the5. is required to take into account only the situation at the time of the
military was even successful in pre-empting the ASG and the proclamation, even if subsequent events prove the situation to
Maute Group’s plan to take over Marawi City and other parts of have not been accurately reported;
Mindanao; there was absence of any hostile plan by the Moro
Islamic Liberation Front; and the number of foreign fighters allied6. Whether or not the power of this Court to review the sufficiency of
with ISIS was “undetermined”28 which indicates that there are only the factual basis [of] the proclamation of martial law or the
a meager number of foreign fighters who can lend support to the suspension of the privilege of the writ of habeas corpus is
Maute Group.29 independent of the actual actions that have been taken by
Congress jointly or separately;
1. B) G.R. No. 231771 (Cullamat Petition)
7. Whether or not there were sufficient factual [basis] for the
The Cullamat Petition, “anchored on Section 18, Article VII” of the proclamation of martial law or the suspension of the privilege of the
Constitution, likewise seeks the nullification of Proclamation writ of habeas corpus;
No. 216 for being unconstitutional because it lacks sufficient
factual basis that there is rebellion in Mindanao and that8. What are the parameters for review?
public safety warrants its declaration.

9. Who has the burden of proof?


1. C) G.R. No. 231774 (Mohamad Petition)

10. What is the threshold of evidence?


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. Whether the exercise of the power of judicial review by this Court
powers of the President should be dispensed involves the calibration of graduated powers granted the President
sequentially, i.e., first, the power to call out the armed forces; as Commander-in-Chief, namely calling out powers, suspension of
second, the power to suspend the privilege of the writ the privilege of the writ of habeas corpus, and declaration of martial
of habeas corpus; and finally, the power to declare martial law;
law.48 It maintains that the President has no discretion to
choose which extraordinary power to use; moreover, his12. Whether or not Proclamation No. 216 of 23 May 2017 may be
choice must be dictated only by, and commensurate to, the considered vague and thus null and void:
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
operational parameters within the entire Mindanao region;
The OSG acknowledges that Section 18, Article VII of the
Constitution vests the Court with the authority or power to review
15. Whether or not the armed hostilities mentioned in Proclamation
the sufficiency of the factual basis of the declaration of martial law.
The OSG, however, posits that although Section 18, Article VII lays No. 216 and in the Report of the President to Congress are
the basis for the exercise of such authority or power, the same sufficient [bases]:
constitutional provision failed to specify the vehicle, mode or
remedy through which the “appropriate proceeding” mentioned16. for the existence of actual rebellion; or
therein may be resorted to. The OSG suggests that the
“appropriate proceeding” referred to in Section 18, Article VII may17. for a declaration of martial law or the suspension of the privilege
be availed of using the vehicle, mode or remedy of of the writ of habeas corpus in the entire Mindanao region;
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. Whether or not terrorism or acts attributable to terrorism are
Court has the discretion not to give due course to the petition.63 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

19. Whether or not nullifying Proclamation No. 216 of 23 May 2017


ISSUES will:

1. Whether or not the petitions docketed as G.R. Nos. 231658,20. have the effect of recalling Proclamation No. 55 s. 2016; or
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. also nullify the acts of the President in calling out the armed
of martial law or the suspension of the privilege of the writ forces to quell lawless violence in Marawi and other parts of the
of habeas corpus is promulgated; Mindanao region.

2. Whether or not the President in declaring martial law and After the oral argument, the parties submitted their respective
suspending the privilege of the writ of habeas corpus: memoranda and supplemental memoranda.

3. is required to be factually correct or only not arbitrary in his Ruling


appreciation of facts;
1. Locus standi of petitioners.- Yes. Petitioners are citizens and
4. is required to obtain the favorable recommendation thereon of the have locus standi
Secretary of National Defense;
One of the requisites for judicial review is locus standi, i.e., “the 1. a) Jurisdiction must be specifically conferred by the
constitutional question is brought before [the Court] by a party Constitution or by law.
having the requisite ‘standing’ to challenge it.” As a general rule,
the challenger must have “a personal and substantial interest It is settled that jurisdiction over the subject matter is
in the case such that he has sustained, or will sustain, direct conferred only by the Constitution or by the law. Unless
injury as a result of its enforcement.”Over the years, there has jurisdiction has been specifically conferred by the
been a trend towards relaxation of the rule on legal standing, a Constitution or by some legislative act, no body or tribunal
prime example of which is found in Section 18 of Article VII has the power to act or pass upon a matter brought before it
which provides that any citizen may file the appropriate for resolution. It is likewise settled that in the absence of
proceeding to assail the sufficiency of the factual basis of a clear legislative intent, jurisdiction cannot be implied from the
the declaration of martial law or the suspension of the language of the Constitution or a statute. It must appear clearly
privilege of the writ of habeas corpus. “[T]he only requisite from the law or it will not be held to exist.
for standing to challenge the validity of the suspension is
that the challenger be a citizen. He need not even be a
taxpayer. 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
Petitioners in the Cullamat Petition claim to be “suing in their proclamation of martial law or suspension of the privilege of
capacities as citizens of the Republic;” similarly, petitioners in the the writ of habeas corpus.
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. b) “In an appropriate proceeding” does not refer to a petition
mention that they are suing as citizens but merely referred to for certiorari filed under Section 1 or 5 of Article VIII.
themselves as duly elected Representatives. That they are
suing in their official capacities as Members of Congress It could not have been the intention of the framers of the
could have elicited a vigorous discussion considering the Constitution that the phrase “in an appropriate proceeding” would
issuance by the House of Representatives of House refer to a Petition for Certiorari pursuant to Section 1 or Section 5
Resolution No. 1050 expressing full support to President of Article VIII. The standard of review in a petition
Duterte and finding no reason to revoke Proclamation No. for certiorari is whether the respondent has committed any
216. By such resolution, the House of Representatives is grave abuse of discretion amounting to lack or excess of
declaring that it finds no reason to review the sufficiency of the jurisdiction in the performance of his or her functions. Thus,
factual basis of the martial law declaration, which is in direct it is not the proper tool to review the sufficiency of the
contrast to the views and arguments being espoused by the factual basis of the proclamation or suspension. It must be
petitioners in the Lagman Petition. Considering, however, the emphasized that under Section 18, Article VII, the Court is tasked
trend towards relaxation of the rules on legal standing, as to review the sufficiency of the factual basis of the President’s
well as the transcendental issues involved in the present exercise of emergency powers. Put differently, if this Court
Petitions, the Court will exercise judicial self-restraint85 and applies the standard of review used in a petition for certiorari, the
will not venture into this matter. After all, “the Court is not same would emasculate its constitutional task under Section 18,
entirely without discretion to accept a suit which does not satisfy Article VII.
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. c) Purpose/ significance of Section 18, Article VII is to
can take judicial cognizance of the fact that petitioners in the constitutionalize the pre-Marcos martial law ruling in In the
Lagman Petition are all citizens of the Philippines since Matter of the Petition for Habeas Corpus of Lansang.
Philippine citizenship is a requirement for them to be elected
as representatives. We will therefore consider them as suing The third paragraph of Section 18, Article VII was inserted by the
in their own behalf as citizens of this country. Besides, framers of the 1987 Constitution to constitutionalize the pre-
respondents did not question petitioners’ legal standing. 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
1. Whether or not the petitions are the “appropriate
the privilege of the writ of habeas corpus is not a political
proceeding” covered by paragraph 3, Section 18, Article VII
question but precisely within the ambit of judicial review.
of the Constitution sufficient to invoke the mode of review
required by the Court.-YES
“In determining the meaning, intent, and purpose of a law or
constitutional provision, the history of the times out of which
All three petitions beseech the cognizance of this Court
it grew and to which it may be rationally supposed to bear
based on the third paragraph of Section 18, Article VII
(Executive Department) of the 1987 Constitution which some direct relationship, the evils intended to be remedied,
provides: 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,
The Supreme Court may review, in an appropriate proceeding explained:
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 The Commander-in-Chief provisions of the 1935 Constitution had
enabled President Ferdinand Marcos to impose authoritarian rule
thereon within thirty days from its filing.
on the Philippines from 1972 to 1986. Supreme Court decisions
during that period upholding the actions taken by Mr. Marcos
During the oral argument, the petitioners theorized that the made authoritarian rule part of Philippine constitutional
jurisdiction of this Court under the third paragraph of Section jurisprudence. The members of the Constitutional Commission,
18, Article VII is sui generis. It is a special and specific very much aware of these facts, went about reformulating the
jurisdiction of the Supreme Court different from those Commander-in-Chief powers with a view to dismantling what had
enumerated in Sections 1 and 5 of Article VIII.88 been constructed during the authoritarian years. The new formula
included revised grounds for the activation of emergency powers,
The Court agrees. 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. render[s] the executive action a political question and beyond the
Castaneda95 that the authority to decide whether there is a state jurisdiction of the courts to adjudicate.
of rebellion requiring the suspension of the privilege of the writ
of habeas corpus is lodged with the President and his decision For the first time, there is a provision that the state of martial law
thereon is final and conclusive upon the courts. This ruling was does not suspend the operation of the Constitution nor abolish
reversed in the 1971 case of Lansang where it was held that civil courts or legislative assemblies, or vest jurisdiction to military
the factual basis of the declaration of martial law and the tribunals over civilians, or suspend the privilege of the writ. Please
suspension of the privilege of the writ of habeas corpus is forgive me if, at this point, I state that this constitutional provision
not a political question and is within the ambit of judicial vindicates the dissenting opinions I have written during my tenure
review.However, in 1983, or after the declaration of martial law by in the Supreme Court in the martial law cases.101
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. f) To interpret “appropriate proceeding” as filed under
constitutional power of the President to suspend the privilege of Section 1 of Article VIII would be contrary to the intent of the
the writ of habeas corpus is not subject to judicial inquiry. Constitution.

Thus, by inserting Section 18 in Article VII which allows To conclude that the “appropriate proceeding” refers to a Petition
judicial review of the declaration of martial law and for Certiorari filed under the expanded jurisdiction of this Court
suspension of the privilege of the writ of habeas corpus, the would, therefore, contradict the clear intention of the framers of
framers of the 1987 Constitution in effect constitutionalized the Constitution to place additional safeguards against possible
and reverted to the Lansang doctrine. 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
1. d) Purpose of Section 18, Article VII is to provide additional safeguard under the third paragraph of Section 18, Article VII on
safeguard against possible abuse by the President on the top of the expanded jurisdiction of this Court.
exercise of the extraordinary powers.

1. g) Jurisdiction of the Court is not restricted to those


Section 18, Article VII is meant to provide additional enumerated in Sections 1 and 5 of Article VIII.
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 The jurisdiction of this Court is not restricted to those enumerated
aftermath of the Marcos martial law, the framers of the in Sections 1 and 5 of Article VIII. For instance, its jurisdiction to
Constitution deemed it wise to insert the now third paragraph of be the sole judge of all contests relating to the election, returns,
Section 18 of Article VII. This is clear from the records of the and qualifications of the President or Vice-President can be found
Constitutional Commission when its members were deliberating in the last paragraph of Section 4, Article VII.102 The power of the
on whether the President could proclaim martial law even without Court to review on certiorari the decision, order, or ruling of the
the concurrence of Congress. Commission on Elections and Commission on Audit can be found
in Section 7, Article IX(A).
1. e) Purpose of Section 18, Article VII is to curtail the extent of
the powers of the President. 1. h) Unique features of the third paragraph of Section 18,
Article VII make it sui generis.
The most important objective, however, of Section 18, Article VII
is the curtailment of the extent of the powers of the The unique features of the third paragraph of Section 18,
Commander-in-Chief. This is the primary reason why the Article VII clearly indicate that it should be treated as sui
provision was not placed in Article VIII or the Judicial Department generis separate and different from those enumerated in
but remained under Article VII or the Executive Department. 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
During the closing session of the Constitutional Commission’s Constitution also limits the issue to the sufficiency of the factual
deliberations, President Cecilia Munoz Palma expressed her basis of the exercise by the Chief Executive of his emergency
sentiments on the 1987 Constitution. She said: powers. The usual period for filing pleadings in Petition
for Certiorari is likewise not applicable under the third paragraph
The executive power is vested in the President of the Philippines of Section 18, Article VII considering the limited period within
elected by the people for a six-year term with no reelection for the which this Court has to promulgate its decision.
duration of his/her life. While traditional powers inherent in the
office of the President are granted, nonetheless for the first A proceeding “[i]n its general acceptation, [is] the form in which
time, there are specific provisions which curtail the extent of actions are to be brought and defended, the manner of
such powers. Most significant is the power of the Chief intervening in suits, of conducting them, the mode of deciding
Executive to suspend the privilege of the writ of habeas them, of opposing judgments, and of executing.” In fine, the
corpus or proclaim martial law. phrase “in an appropriate proceeding” appearing on the third
paragraph of Section 18, Article VII refers to any action initiated
The flagrant abuse of that power of the Commander-in-Chief by by a citizen for the purpose of questioning the sufficiency of the
Mr. Marcos caused the imposition of martial law for more than factual basis of the exercise of the Chief Executive’s emergency
eight years and the suspension of the privilege of the writ even powers, as in these cases. It could be denominated as a
after the lifting of martial law in 1981. The new Constitution now complaint, a petition, or a matter to be resolved by the Court.
provides that those powers can be exercised only in two cases,
invasion or rebellion when public safety demands it, only for a III. The power of the Court to review the sufficiency of the
period not exceeding 60 days, and reserving to Congress the factual basis of the proclamation of martial law or the
power to revoke such suspension or proclamation of martial law suspension of the privilege of the writ of habeas corpus
which congressional action may not be revoked by the President. under Section 18, Article VII of the 1987 Constitution is
More importantly, the action of the President is made subject to independent of the actions taken by Congress.
judicial review, thereby again discarding jurisprudence which
During the oral argument,the OSG urged the Court to give 1. REGALADO. May I also inform Commissioner Quesada that the
deference to the actions of the two co-equal branches of the judiciary is not exactly just standing by. A petition for a writ of
Government: on the part of the President as Commander-in- habeas corpus, if the Members are detained, can immediately be
Chief, in resorting to his extraordinary powers to declare martial applied for, and the Supreme Court shall also review the factual
law and suspend the privilege of the writ of habeas corpus; and basis. x x x107
on the part of Congress, in giving its imprimatur to Proclamation
No. 216 and not revoking the same. 2. c) Re-examination of the Court’s pronouncement in Fortun v.
President Macapagal-Arroyo.
The framers of the 1987 Constitution reformulated the scope of
the extraordinary powers of the President as Commander-in-Chief Considering the above discussion, the Court finds it imperative to
and the review of the said presidential action. In particular, the reexamine, reconsider, and set aside its pronouncement in Fortun
President’s extraordinary powers of suspending the privilege of v. President Macapagal-Arroyo to the effect that:
the writ of habeas corpus and imposing martial law are subject to
the veto powers of the Court and Congress.
Consequently, although the Constitution reserves to the Supreme
Court the power to review the sufficiency of the factual basis of
1. a) The judicial power to review versus the congressional the proclamation or suspension in a proper suit, it is implicit that
power to revoke. the Court must allow Congress to exercise its own review powers,
which is automatic rather than initiated. Only when Congress
The Court may strike down the presidential proclamation in an defaults in its express duty to defend the Constitution through
appropriate proceeding filed by any citizen on the ground of lack such review should the Supreme Court step in as its final rampart.
of sufficient factual basis. On the other hand, Congress may The constitutional validity of the President’s proclamation of
revoke the proclamation or suspension, which revocation shall not martial law or suspension of the writ of habeas corpus is first a
be set aside by the President. political question in the hands of Congress before it becomes a
justiciable one in the hands of the Court.
In reviewing the sufficiency of the factual basis of the
proclamation or suspension, the Court considers only the xxx
information and data available to the President prior to or at the
time of the declaration; it is not allowed to “undertake an If the Congress procrastinates or altogether fails to fulfill its duty
independent investigation beyond the pleadings.” On the other respecting the proclamation or suspension within the short time
hand, Congress may take into consideration hot only data expected of it, then the Court can step in, hear the petitions
available prior to, but likewise events supervening the declaration. challenging the President’s action, and ascertain if it has a factual
Unlike the Court which does not look into the absolute basis. x x x
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. 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
In addition, the Court’s review power is passive; it is only initiated Court considered itself just on stand-by, waiting and willing to act
by the filing of a petition “in an appropriate proceeding” by a as a substitute in case Congress “defaults.” It is an aberration, a
citizen. On the other hand, Congress’ review mechanism is stray declaration, which must be rectified and set aside in this
automatic in the sense that it may be activated by Congress itself proceeding.
at any time after the proclamation or suspension was made.

We, therefore, hold that the Court can simultaneously exercise its
Thus, the power to review by the Court and the power to revoke power of review with, and independently from, the power to
by Congress are not only totally different but likewise independent revoke by Congress. Corollary, any perceived inaction or default
from each other although concededly, they have the same on the part of Congress does not deprive or deny the Court of its
trajectory, which is, the nullification of the presidential power to review.
proclamation. Needless to say, the power of the Court to review
can be exercised independently from the power of revocation of
Congress. 1. 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
1. b) The framers of the 1987 Constitution intended the judicial calibration of the President’s decision of which among his
power to review to be exercised independently from the graduated powers he will avail of in a given situation.
congressional power to revoke.

The President as the Commander-in-Chief wields the


If only to show that the intent of the framers of the 1987 extraordinary powers of: a) calling out the armed forces; b)
Constitution was to vest the Court and Congress with veto powers suspending the privilege of the writ of habeas corpus; and c)
independently from each other, we quote the following exchange: declaring martial law. These powers may be resorted to only
under specified conditions.
1. QUESADA. Yesterday, the understanding of many was that there
would be safeguards that Congress will be able to revoke such The framers of the 1987 Constitution reformulated the powers of
proclamation. the Commander-in-Chief by revising the “grounds for the
activation of emergency powers, the manner of activating them,
2. RAMA. Yes. the scope of the powers, and review of presidential action.”

3. QUESADA. But now, if they cannot meet because they have been1. a) Extraordinary powers of the President distinguished.
arrested or that the Congress has been padlocked, then who is
going to declare that such a proclamation was not warranted? Among the three extraordinary powers, the calling out power
is the most benign and involves ordinary police action The
xxx President may resort to this extraordinary power whenever it
becomes necessary to prevent or suppress lawless violence, have the effect of law but strictly in a theater of war, not in
invasion, or rebellion. “[T]he power to call is fully the situation we had during the period of martial law. In other
discretionary to the President;”the only limitations being that words, there is an effort here to return to the traditional
he acts within permissible constitutional boundaries or in a concept of martial law as it was developed especially in
manner not constituting grave abuse of discretion.In fact, American jurisprudence, where martial law has reference to
“the actual use to which the President puts the armed forces the theater of war.
is x x x not subject to judicial review.”
xxx
The extraordinary powers of suspending the privilege of the
writ of habeas corpus and/or declaring martial law may be 1. BERNAS. This phrase was precisely put here because we have
exercised only when there is actual invasion or rebellion, and clarified the meaning of martial law; meaning, limiting it to martial
public safety requires it. The 1987 Constitution imposed the law as it has existed in the jurisprudence in international law, that
following limits in the exercise of these powers: “(1) a time it is a law for the theater of war. In a theater of war, civil courts
limit of sixty days; (2) review and possible revocation by are unable to function. If in the actual theater of war civil
Congress; [and] (3) review and possible nullification by the courts, in fact, are unable to function, then the military
Supreme Court.” commander is authorized to give jurisdiction even over
civilians to military courts precisely because the civil courts
The framers of the 1987 Constitution eliminated insurrection, are closed in that area. But in the general area where the civil
and the phrase “imminent danger thereof” as grounds for the courts are open then in no case can the military courts be
suspension of the privilege of the writ of habeas corpus or given jurisdiction over civilians. This is in reference to a
declaration of martial law. They perceived the phrase theater of war where the civil courts, in fact, are unable to
“imminent danger” to be “fraught with possibilities function.
of abuse;”besides, the calling out power of the President “is
sufficient for handling imminent danger.” 2. FOZ. It is a state of things brought about by the realities of the
situation in that specified critical area.
The powers to declare martial law and to suspend the
privilege of the writ of habeas corpus involve curtailment and 3. BERNAS. That is correct.
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. FOZ. And it is not something that is brought about by a
assist in the maintenance of law and order, and while the declaration of the Commander-in-Chief.
emergency remains, the citizens must, under pain of arrest
and punishment, not act in a manner that will render it more 5. BERNAS. It is not brought about by a declaration of the
difficult to restore order and enforce the law.As such, their Commander-in-Chief. The understanding here is that the phrase
exercise requires more stringent safeguards by the ‘nor authorize the conferment of jurisdiction on military courts and
Congress, and review by the Court. agencies over civilians’ has reference to the practice under the
Marcos regime where military courts were given jurisdiction over
1. b) What really happens during martial law? 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.
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 A state of martial law is peculiar because the President, at
could not exercise if there is no martial law? Interestingly, these such a time, exercises police power, which is normally a
questions were also discussed by the framers of the 1987 function of the Legislature. In particular, the President
Constitution, viz.: 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
1. BERNAS. That same question was asked during the meetings of condition in a locality, which remains under the control of the
the Committee: What precisely does martial law add to the power State.
of the President to call on the armed forces? The first and second
lines in this provision state:
In David v. President Macapagal-Arroyo, the Court, quoting
Justice Vicente V. Mendoza’s (Justice Mendoza) Statement
A state of martial law does not suspend the operation of the before the Senate Committee on Justice on March 13, 2006,
Constitution, nor supplant the functioning of the civil courts stated that under a valid declaration of martial law, the President
or legislative assemblies… as Commander-in-Chief may order the “(a) arrests and seizures
without judicial warrants; (b) ban on public assemblies; (c)
The provision is put there, precisely, to reverse the doctrine [takeover] of news media and agencies and press censorship;
of the Supreme Court. I think it is the case of Aquino v. and (d) issuance of Presidential Decrees x x x”.
COMELEC where the Supreme Court said that in times of
martial law, the President automatically has legislative Worthy to note, however, that the above-cited acts that the
power. So these two clauses denied that. A state of martial President may perform do not give him unbridled discretion
law does not suspend the operation of the Constitution; to infringe on the rights of civilians during martial law. This is
therefore, it does not suspend the principle of separation of because martial law does not suspend the operation of the
powers. Constitution, neither does it supplant the operation of civil
courts or legislative assemblies. Moreover, the guarantees
The question now is: During martial law, can the President issue under the Bill of Rights remain in place during its pendency.
decrees? The answer we gave to that question in the Committee And in such instance where the privilege of the writof habeas
was: During martial law, the President may have the powers corpus is also suspended, such suspension applies only to
of a commanding general in a theatre of war. In actual war those judicially charged with rebellion or offenses connected
when there is fighting in an area, the President as the with invasion.
commanding general has the authority to issue orders which
Clearly, from the foregoing, while martial law poses the most writ of habeas corpus. Considering that the proclamation of
severe threat to civil liberties, the Constitution has martial law or suspension of the privilege of the writ of habeas
safeguards against the President’s prerogative to declare a corpus is now anchored on actual invasion or rebellion and when
state of martial law. public safety requires it, and is no longer under threat or in
imminent danger thereof, there is a necessity and urgency for the
1. c) “Graduation” of powers refers to hierarchy based on President to act quickly to protect the country. The Court, as
scope and effect; it does not refer to a sequence, order, or Congress does, must thus accord the President the same leeway
arrangement by which the Commander-in-Chief must adhere by not wading into the realm that is reserved exclusively by the
to. Constitution to the Executive Department.

Indeed, the 1987 Constitution gives the “President, as 1. f) The recommendation of the Defense Secretary is not a
Commander-in-Chief, a ‘sequence’ of ‘graduated power[s]’. condition for the declaration of martial law or suspension of
From the most to the least benign, these are: the calling out the privilege of the writ of habeas corpus.
power, the power to suspend the privilege of the writ
of habeas corpus, and the power to declare martial law.” It Even the recommendation of, or consultation with, the Secretary
must be stressed, however, that the graduation refers only to of National Defense, or other high-ranking military officials, is not
hierarchy based on scope and effect. It does not in any a condition for the President to declare martial law. A plain
manner refer to a sequence, arrangement, or order which the reading of Section 18, Article VII of the Constitution shows
Commander-in-Chief must follow. This so-called “graduation that the President’s power to declare martial law is not
of powers” does not dictate or restrict the manner by which subject to any condition except for the requirements of
the President decides which power to choose. actual invasion or rebellion and that public safety requires it.
Besides, it would be contrary to common sense if the
These extraordinary powers are conferred by the decision of the President is made dependent on the
Constitution with the President as Commander-in-Chief; it recommendation of his mere alter ego. Rightly so, it is only
therefore necessarily follows that the power and prerogative on the President and no other that the exercise of the powers
to determine whether the situation warrants a mere exercise of the Commander-in-Chief under Section 18, Article VII of
of the calling out power; or whether the situation demands the Constitution is bestowed.
suspension of the privilege of the writ of habeas corpus; or
whether it calls for the declaration of martial law, also lies, at 1. g) In any event, the President initially employed the most
least initially, with the President. The power to choose, benign action-the calling out power-before he declared
initially, which among these extraordinary powers to wield in martial law and suspended the privilege of the writ of habeas
a given set of conditions is a judgment call on the part of the corpus.
President. As Commander-in-Chief, his powers are broad
enough to include his prerogative to address exigencies or At this juncture, it must be stressed that prior to Proclamation No.
threats that endanger the government, and the very integrity 216 or the declaration of martial law on May 23, 2017, the
of the State. President had already issued Proclamation No. 55 on September
4, 2016, declaring a state of national emergency on account of
It is thus beyond doubt that the power of judicial review does not lawless violence in Mindanao. This, in fact, is extant in the first
extend to calibrating the President’s decision pertaining to which Whereas Clause of Proclamation No. 216. Based on the
extraordinary power to avail given a set of facts or conditions. To foregoing presidential actions, it can be gleaned that although
do so would be tantamount to an incursion into the exclusive there is no obligation or requirement on his part to use his
domain of the Executive and an infringement on the prerogative extraordinary powers on a graduated or sequential basis, still the
that solely, at least initially, lies with the President. President made the conscious and deliberate effort to first employ
the most benign from among his extraordinary powers. As the
1. d) The framers of the 1987 Constitution intended the initial and preliminary step towards suppressing and preventing
Congress not to interfere a priori in the decision-making the armed hostilities in Mindanao, the President decided to use
process of the President. 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
The elimination by the framers of the 1987 Constitution of the impose martial law and suspend the privilege of the writ
requirement of prior concurrence of the Congress in the of habeas corpus on the belief that the armed hostilities in
initial imposition of martial law or suspension of the privilege Mindanao already amount to actual rebellion and public
of the writ of habeas corpus further supports the conclusion safety requires it.
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. Whether or not Proclamation No. 216 may be considered
the 1987 Constitution removed the requirement of vague and thus void because of (a) its inclusion of “other
congressional concurrence in the first imposition of martial rebel groups”; and (b) the absence of any guideline
law and suspension of the privilege. specifying its actual operational parameters within the entire
Mindanao region.-NO

1. e) The Court must similarly and necessarily refrain from


calibrating the President’s decision of which among his Proclamation No. 216 is being facially challenged on the ground
extraordinary powers to avail given a certain situation or of “vagueness” by the insertion of the phrase “other rebel
condition. 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
It cannot be overemphasized that time is paramount in interpretation, misinterpretation, or confusion.
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 This argument lacks legal basis.
Constitutional Commission to eliminate the requirement of
concurrence of the Congress in the initial imposition by the 1. a) Void-for-vagueness doctrine.
President of martial law or suspension of the privilege of the
The void-for-vagueness doctrine holds that a law is facially Section 18, Article VII of the Constitution should be understood as
invalid if “men of common intelligence must necessarily the only test for judicial review of the President's power to declare
guess at its meaning and differ as to its application.” martial law and suspend the privilege of the writ of habeas
“[A] statute or act may be said to be vague when it lacks corpus under Section 18, Article VII of the Constitution. The Court
comprehensible standards that men of common intelligence does not need to satisfy itself that the President's decision is
must necessarily guess at its meaning and differ in its correct, rather it only needs to determine whether the President's
application. [In such instance, the statute] is repugnant to the decision had sufficient factual bases.
Constitution in two respects: (1) it violates due process for
failure to accord persons, especially the parties targeted by We conclude, therefore, that Section 18, Article VII limits the
it, fair notice of the conduct to avoid; and (2) it leaves law scope of judicial review by the introduction of the "sufficiency of
enforcers unbridled discretion in carrying out its provisions the factual basis" test.
and becomes an arbitrary flexing of the Government
muscle.”
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,
VII. The Scope of the Power to Review. 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
a) The scope of the power of proclamation as well as the written Report submitted by him to
review under the 1987 Constitution Congress. These may be based on the situation existing at the
refers only to the determination of the time the declaration was made or past events. As to how far the
sufficiency of the factual basis of the past events should be from the present depends on the President.
declaration of martial law and
suspension of the privilege of habeas
corpus. 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
To recall, the Court, in the case of In the Matter of the Petition for declaration.
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 As to what facts must be stated in the proclamation and the
constitutionally-imposed limitations on the Presidential power to written Report is up to the President.165 As Commander-in-Chief,
suspend the privilege of the writ of habeas he has sole discretion to determine what to include and what not
corpus.162 "Lansang limited the review function of the Court to a to include in the proclamation and the written Report taking into
very prudentially narrow test of arbitrariness." 163 Fr. Bernas account the urgency of the situation as well as national security.
described the "proper bounds" in Lansang as follows: He cannot be forced to divulge intelligence reports and
confidential information that may prejudice the operations and the
safety of the military.
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 Similarly, events that happened after the issuance of the
to ascertain merely whether he has gone beyond the proclamation, which are included in the written report, cannot be
constitutional limits of his jurisdiction, not to exercise the power considered in determining the sufficiency of the factual basis of
vested in him or to determine the wisdom of his act. More the declaration of martial law and/or the suspension of the
specifically, the Court said that its power was not 'even privilege of the writ of habeas corpus since these happened after
comparable with its power over civil or criminal cases elevated the President had already issued the proclamation. If at all, they
thereto by appeal...in which cases the appellate court has all the may be used only as tools, guides or reference in the Court's
powers of the courtof origin,' nor to its power of quasi-judicial determination of the sufficiency of factual basis, but not as part or
administrative decisions where the Court is limited to asking component of the portfolio of the factual basis itself.
whether 'there is some evidentiary basis' for the administrative
finding. Instead, the Court accepted the Solicitor General's In determining the sufficiency of the factual basis of the
suggestion that it 'go no further than to satisfy [itself] not that the declaration and/or the suspension, the Court should look into the
President's decision is correct and that public safety was full complement or totality of the factual basis, and not piecemeal
endangered by the rebellion and justified the suspension of the or individually. Neither should the Court expect absolute
writ, but that in suspending the writ, the President did not act correctness of the facts stated in the proclamation and in the
arbitrarily.'164 written Report as the President could not be expected to verify the
accuracy and veracity of all facts reported to him due to the
Lansang, however, was decided under the 1935 Constitution. The urgency of the situation. To require precision in the President's
1987 Constitution, by providing only for judicial review based on appreciation of facts would unduly burden him and therefore
the determination of the sufficiency of the factual bases, has in impede the process of his decision-making. Such a requirement
fact done away with the test of arbitrariness as provided will practically necessitate the President to be on the ground to
in Lansang. 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
b) The "sufficiency of factual President in peril but would also defeat the very purpose of the
basis test". grant of emergency powers upon him, that is, to borrow the words
of Justice Antonio T. Carpio in Fortun, to "immediately put an end
Similarly, under the doctrine of contemporaneous construction, to the root cause of the emergency".166 Possibly, by the time the
the framers of the 1987 Constitution are presumed to know the President is satisfied with the correctness of the facts in his
prevailing jurisprudence at the time they were drafting the possession, it would be too late in the day as the invasion or
Constitution. Thus, the phrase "sufficiency of factual basis" in 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.