De Castro v.

Judicial and Bar Council

G.R. No. 191002 –– 17 MARCH, 2010
Justice Bersamin

BASIC FACTS: De Castro v. Judicial and Bar Council

G.R. No. 191002 –– 17 MARCH, 2010
Justice Bersamin

AT A GLANCE: Laws invoked:

● Article VII, Section 15, 1987 Constitution.
○ Two months immediately before the next presidential elections and up to
the end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions
when continued vacancies therein will prejudice public service or
endanger public safety.
● Article VIII, Section 4, 1987 Constitution.
○ (1) The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. It may sit en banc or in its discretion, in divisions of
three, five, or seven Members. Any vacancy shall be filled within ninety
days from the occurrence thereof.
● Article VIII, Section 9, 1987 Constitution.
○ The Members of the Supreme Court and judges of lower courts shall be
appointed by the President from a list of at least three nominees prepared
by the Judicial and Bar Council for every vacancy. Such appointments
need no confirmation. For the lower courts, the President shall issue the
appointments within ninety days from the submission of the list.

FACTS OF THE CASE: This is a consolidated case, brought about by the impending compulsory retirement of
Chief Justice Puño on May 17, 2010, which would be seven (7) days after the presidential
election on May 10, 2010. This posed a dilemma because of conflicting mandatory
provisions of the Constitution:
● That the President, two months before the next presidential elections and until
the end of his term (June 30), is prohibited from making appointments;
● That any vacancy within the Supreme Court shall be filled within 90 days, from a
list of nominees prepared and vetted by the JBC.

Both cannot be adhered to simultaneously — following the prohibition would mean that
the Supreme Court vacancy cannot be filled within 90 days (for reference, the period of
prohibition would fall between 109 and 115 days, depending on the date of the election,
which would mean there would be at least 19 occasions to appoint a CJ that the President
 would forgo, therefore not complying with his constitutional duty); appointing a Chief
Justice during the period of prohibition would be an express violation of it.

The JBC, as the body in charge of submitting a shortlist to the President, began the
process of filling the Chief Justice position but has not decided on when to submit the list
due to the controversy.

ISSUE/S AND RATIO: Whether or not the sitting President is permitted to appoint the Chief Justice of the
Supreme Court within the prohibition period — that is, two months before the next
presidential elections and until the end of his term.
● Yes, he is. The prohibition against appointments does not extend to the judiciary.
● TL;DR: The text and the structure (i.e. positioning) of the relevant articles show
that the prohibition is confined specifically to appointments in the Executive
Department. Furthermore, it may be gleaned from records of the Constitutional
Commission that they did not intend to extend the prohibition to the Judiciary, in
the spirit of separation of powers and judicial independence.

(1) The records of the Constitutional Commission arranged the constitution

deliberately and purposefully. In separating the provision regarding the branches
of government into three separate articles, it recognized the separation of powers.
Article VII, where the prohibition was expressed, fell within the provisions for the
Executive Department; if the framers intended to extend the prohibition to the
judiciary, it would have explicitly done so in Article VIII.
(a) Referred to the Valenzuela case, which extended the prohibition to
Judiciary: now reversed.
(2) Article VII, Section 15 also does not apply to other appointments in the Judiciary.
The adoption of the prohibition was to avoid midnight appointments made by an
outgoing President in the Executive. It was ascertained from the background and
rationale for Section 15 that the ConCom confined the prohibition to
appointments made in the Executive. Also, the creation of the JBC eliminated the
danger of midnight appointments in the Judiciary.
(3) The non-applicability of Article VII, Section 15 was confirmed by Justice
Regalado to the JBC itself.
(4) Section 15 must be read in context — that is, in its positioning as regards
Sections 14 and 15. These three sections talk about the power of the President to
appoint. Considering this, it can be concluded that it evidently refers to
appointments in the Executive, and does not apply to the Judiciary.
(5) To hold that Section 15 extends to appointments in the Judiciary undermines the
intent of the Constitution to ensure judicial independence.
(6) To say that there will still be time for the next President to appoint a new CJ after
the prohibition disregards the fact that there will inevitably be other vacancies in
the SC after the new CJ is appointed; furthermore, there actually won’t be time,
given the full scope of the prohibition period.
(7) In an extreme case, there is doubt as to whether a JBC list is necessary at all; if
the president appoints the CJ from any of the sitting justices, there’s no need for
 them to be vetted again by the JBC as they had already been evaluated upon first
becoming members of the Judiciary.

RULING: WHEREFORE, the Court [...] directs the JBC to: resume its proceedings for nomination of
candidates, prepare the shortlist of nominees, submit to the incumbent President on or
before May 17, 2010, continue its proceedings for the nomination of candidates to fill
other vanacies in the Judiciary and submit shortlists accordingly.

Justice Carpio-Morales, dissenting:

● (Gatmaytan) The power to appoint the CJ is counterbalanced by the election ban,
a much-needed measure to insuulate the Judiciary from the political climate of the
presidential elections.
Rebutting the majority opinion:
(1) It is not enough to say that the sequencing of the constitutional provisions
ascertains the intent of the framers.
(2) The conclusion that the prohibition does not extend to the judiciary is belied by
records of the Constitutional Commission, wherein it was posited that the
prohibition seeks to avoid the situation where a President may prolong his rule by
appointing people to positions in the commissions, Ombudsman, the Judiciary, to
extend his power even beyond his term of office.
(3) The point on judicial independence is flawed — overlooks the risk of
compromising this when the President faces charges against him once his
presidential immunity has expired.
(4) There was no distinction or exception installed; by statutory construction, the
general and only rule is that the prohibition applies to all kinds of midnight
appointments.
(5) The weight given to the opinion of Justice Regalado ignores the fact that the
Valenzuela was decided en banc, and by Justices who all became CJs.
(6) The 90-day limitation is only suspended during the prohibition period, which
happens only once every 6th years.
(7) The point on the necessity of the JBC’s list re: the CJ appointment is a non-issue.
The Constitution clearly states that the appointee must come from a JBC shortlist.
(8) The SC can function even without a sitting Chief Justice! The fact that there’s a
90-day limitation rebuts the argument on the necessity to avoid even a single-day
of vacuum in the CJ position.