Art. 8.

Judicial decisions applying or interpreting the laws or the

Constitution shall form a part of the legal system of the Philippines.
(n)

[G.R. No. 136921. April 17, 2001]

LORNA
GUILLEN
PESCA, petitioner,
PESCA, respondent.

vs. ZOSIMO

A.

DECISION
VITUG, J.:
Submitted for review is the decision of the Court of Appeals,
promulgated on 27 May 1998, in C.A. G.R. CV. No. 52374, reversing the
decision of the Regional Trial Court (RTC) of Caloocan City, Branch 130,
which has declared the marriage between petitioner and respondent to be
null and void ab initio on the ground of psychological incapacity on the part
of respondent.
Petitioner Lorna G. Pesca and respondent Zosimo A. Pesca first met
sometime in 1975 while on board an inter-island vessel bound for Bacolod
City. After a whirlwind courtship, they got married on 03 March
1975. Initially, the young couple did not live together as petitioner was still a
student in college and respondent, a seaman, had to leave the country on
board an ocean-going vessel barely a month after the marriage. Six months
later, the young couple established their residence in Quezon City until they
were able to build their own house in Caloocan City where they finally
resided. It was blissful marriage for the couple during the two months of
the year that they could stay together when respondent was on
vacation. The union begot four children, 19-year old Ruhem, 17-year old
Rez, 11-year old Ryan, and 9-year old Richie.
It started in 1988, petitioner said, when she noticed that respondent
surprisingly showed signs of psychological incapacity to perform his marital
covenant. His "true color" of being an emotionally immature and
irresponsible husband became apparent. He was cruel and violent. He was
a habitual drinker, staying with friends daily from 4:00 o'clock in the
afternoon until 1:00 o'clock in the morning.When cautioned to stop or, to at
least, minimize his drinking, respondent would beat, slap and kick her. At
one time, he chased petitioner with a loaded shotgun and threatened to kill
her in the presence of the children. The children themselves were not
spared from physical violence.
Finally, on 19 November 1992, petitioner and her children left the
conjugal abode to live in the house of her sister in Quezon City as they
could no longer bear his violent ways. Two months later, petitioner decided
to forgive respondent, and she returned home to give him a chance to

change. But, to her dismay, things did not so turn out as expected. Indeed,
matters became worse.
On the morning of 22 March 1994, about eight oclock, respondent
assaulted petitioner for about half an hour in the presence of the
children. She was battered black and blue. She submitted herself to
medical examination at the Quezon City General Hospital, which diagnosed
her injuries as contusions and abrasions. Petitioner filed a complaint with
the barangay authorities, and a case was filed against respondent for slight
physical injuries. He was convicted by the Metropolitan Trial Court of
Caloocan City and sentenced to eleven days of imprisonment.
This time, petitioner and her children left the conjugal home for good
and stayed with her sister. Eventually, they decided to rent an apartment.
Petitioner sued respondent before the Regional Trial Court for the
declaration of nullity of their marriage invoking psychological
incapacity. Petitioner likewise sought the custody of her minor children and
prayed for support pendente lite.
Summons, together with a copy of the complaint, was served on
respondent on 25 April 1994 by personal service by the sheriff. As
respondent failed to file an answer or to enter his appearance within the
reglementary period, the trial court ordered the city prosecutor to look into a
possible collusion between the parties. Prosecutor Rosa C. Reyes, on 03
August 1994, submitted her report to the effect that she found no evidence
to establish that there was collusion between the parties.
On 11 January 1995, respondent belatedly filed, without leave of court,
an answer, and the same, although filed late, was admitted by the court. In
his answer, respondent admitted the fact of his marriage with petitioner and
the birth of their children. He also confirmed the veracity of Annex "A" of the
complaint which listed the conjugal property. Respondent vehemently
denied, however, the allegation that he was psychologically incapacitated.
On 15 November 1995, following hearings conducted by it, the trial
court rendered its decision declaring the marriage between petitioner and
respondent to be null and void ab initio on the basis of psychological
incapacity on the part of respondent and ordered the liquidation of the
conjugal partnership.
Respondent appealed the above decision to the Court of Appeals,
contending that the trial court erred, particularly, in holding that there was
legal basis to declare the marriage null and void and in denying his motion
to reopen the case.
The Court of Appeals reversed the decision of the trial court and
declared the marriage between petitioner and respondent valid and
subsisting. The appellate court said:
"Definitely the appellee has not established the following: That the
appellant showed signs of mental incapacity as would cause him to be truly
incognitive of the basic marital covenant, as so provided for in Article 68 of
the Family Code; that the incapacity is grave, has preceded the marriage

and is incurable; that his incapacity to meet his marital responsibility is

because of a psychological, not physical illness; that the root cause of the
incapacity has been identified medically or clinically, and has been proven
by an expert; and that the incapacity is permanent and incurable in nature.
The burden of proof to show the nullity of marriage lies in the plaintiff and
any doubt should be resolved in favor of the existence and continuation of
the marriage and against its dissolution and nullity." [1]
Petitioner, in her plea to this Court, would have the decision of the Court
of Appeals reversed on the thesis that the doctrine enunciated in Santos vs.
Court of Appeals,[2] promulgated on 14 January 1995, as well as the
guidelines set out in Republic vs. Court of Appeals and Molina,
[3]
promulgated on 13 February 1997, should have no retroactive application
and, on the assumption that the Molina ruling could be applied
retroactively, the guidelines therein outlined should be taken to be merely
advisory and not mandatory in nature. In any case, petitioner argues, the
application of the Santos and Molina dictashould warrant only a remand of
the case to the trial court for further proceedings and not its dismissal.
Be that as it may, respondent submits, the appellate court did not err in
its assailed decision for there is absolutely no evidence that has been
shown to prove psychological incapacity on his part as the term has been
so defined in Santos.
Indeed, there is no merit in the petition.
The term psychological incapacity, as a ground for the declaration of
nullity of a marriage under Article 36 of the Family Code, has been
explained by the Court in Santos and reiterated in Molina. The Court,
in Santos, concluded:
"It should be obvious, looking at all the foregoing disquisitions, including,
and most importantly, the deliberations of the Family Code Revision
Committee itself, that the use of the phrase `psychological incapacity under
Article 36 of the Code has not been meant to comprehend all such possible
cases of psychoses as, likewise mentioned by some ecclesiastical
authorities, extremely low intelligence, immaturity, and like circumstances
(cited in Fr. Artemio Balumad's `Void and Voidable Marriages in the Family
Code and their Parallels in Canon Law, quoting form the Diagnostic
Statistical Manuel of Mental Disorder by the American Psychiatric
Association; Edward Hudson's `Handbook II for Marriage Nullity
Cases). Article 36 of the Family Code cannot be taken and construed
independently of, but must stand in conjunction with, existing precepts in
our law on marriage. Thus correlated, `psychological incapacity should
refer to no less than a mental (not physical) incapacity that causes a party
to be truly incognitive of the basic marital covenants that concomitantly
must be assumed and discharged by the parties to the marriage which, as
so expressed by Article 68 of the Family Code, include their mutual
obligations to live together, observe love, respect and fidelity and render
help and support. There is hardly any doubt that the intendment of the law

has been to confine the meaning of `psychological incapacity to the most

serious cases of personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance to the
marriage. This psychologic condition must exist at the time the marriage is
celebrated."
The "doctrine of stare decisis," ordained in Article 8 of the Civil
Code, expresses that judicial decisions applying or interpreting the law
shall form part of the legal system of the Philippines. The rule follows the
settled legal maxim legis interpretado legis vim obtinet that the
interpretation placed upon the written law by a competent court has the
force of law.[4] The interpretation or construction placed by the courts
establishes the contemporaneous legislative intent of the law. The latter as
so interpreted and construed would thus constitute a part of that law as of
the date the statute is enacted. It is only when a prior ruling of this Court
finds itself later overruled, and a different view is adopted, that the new
doctrine may have to be applied prospectively in favor of parties who have
relied on the old doctrine and have acted in good faith in accordance
therewith[5] under the familiar rule of lex prospicit, non respicit.
The phrase psychological incapacity, borrowed from Canon law, is an
entirely novel provision in our statute books, and, until the relatively recent
enactment of the Family Code, the concept has escaped jurisprudential
attention. It is in Santos when, for the first time, the Court has given life to
the term. Molina, that followed, has additionally provided procedural
guidelines to assist the courts and the parties in trying cases for annulment
of marriages grounded on psychological incapacity. Molina has
strengthened, not overturned, Santos.
At all events, petitioner has utterly failed, both in her allegations in the
complaint and in her evidence, to make out a case of psychological
incapacity on the part of respondent, let alone at the time of solemnization
of the contract, so as to warrant a declaration of nullity of the
marriage. Emotional immaturity and irresponsibility, invoked by her, cannot
be equated with psychological incapacity.
The Court reiterates its reminder that marriage is an inviolable social
institution and the foundation of the family [6] that the State cherishes and
protects. While the Court commisserates with petitioner in her unhappy
marital relationship with respondent, totally terminating that relationship,
however, may not necessarily be the fitting denouement to it. In these
cases, the law has not quite given up, neither should we.
WHEREFORE, the herein petition is DENIED. No costs.
SO ORDERED.
Melo, (Chairman),
Gutierrez, JJ., concur.

Panganiban,

Gonzaga-Reyes, and Sandoval-

[1]

Rollo, pp. 42-43.

[2]

240 SCRA 20

[3]

268 SCRA 198.

[4]

People vs. Jabinal, 55 SCRA 607.

[5]

Unciano Paramedical College, Inc. vs. Court of Appeals, 221 SCRA 285;
Tanada vs. Guingona, 235 SCRA 507; Columbia Pictures, Inc., vs. Court of
Appeals, 261 SCRA 144.
[6]

See Section 2, Article XV, 1987 Constitution.

Republic of the Philippines

Supreme Court
Manila
EN BANC
ARTURO M. DE CASTRO,
Petitioner,

G. R. No. 191002

- versus JUDICIAL AND BAR COUNCIL

(JBC) and PRESIDENT GLORIA
MACAPAGAL ARROYO,
Respondents.
x-----------------------x
JAIME N. SORIANO,
Petitioner,

G.R. No. 191032

- versus JUDICIAL AND BAR COUNCIL

(JBC),
Respondent.
x-----------------------x
PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA),
Petitioner,

G.R. No. 191057

- versus JUDICIAL AND BAR COUNCIL

(JBC),
Respondent.
x-----------------------x

A.M. No. 10-2-5-SC

IN RE APPLICABILITY OF
SECTION 15, ARTICLE VII OF
THE CONSTITUTION TO
APPOINTMENTS TO THE
JUDICIARY,
ESTELITO P. MENDOZA,
Petitioner,
x-----------------------x
JOHN G. PERALTA,
Petitioner,
- versus JUDICIAL AND BAR COUNCIL
(JBC).
Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - -x
PETER IRVING CORVERA;
CHRISTIAN ROBERT S. LIM;
ALFONSO V. TAN, JR.;
NATIONAL UNION OF PEOPLES
LAWYERS;
MARLOU B. UBANO;
INTEGRATED BAR OF THE
PHILIPPINES-DAVAO DEL SUR
CHAPTER, represented by its
Immediate Past President, ATTY.
ISRAELITO P. TORREON, and the
latter in his own personal
capacity as a MEMBER of the
PHILIPPINE BAR;
MITCHELL JOHN L. BOISER;
BAGONG ALYANSANG BAYAN
(BAYAN) CHAIRMAN DR.
CAROLINA P. ARAULLO; BAYAN
SECRETARY GENERAL RENATO
M. REYES, JR.;
CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCEMENT OF GOVERNMENT
EMPLOYEES (COURAGE)
CHAIRMAN FERDINAND GAITE;

G.R. No. 191149

KALIPUNAN NG DAMAYANG
MAHIHIRAP (KADAMAY)
SECRETARY GENERAL GLORIA
ARELLANO; ALYANSA NG
NAGKAKAISANG KABATAAN NG
SAMBAYANAN PARA SA
KAUNLARAN (ANAKBAYAN)
CHAIRMAN KEN LEONARD
RAMOS; TAYO ANG PAG-ASA
CONVENOR ALVIN PETERS;
LEAGUE OF FILIPINO
STUDENTS (LFS) CHAIRMAN
JAMES MARK TERRY
LACUANAN RIDON; NATIONAL
UNION OF STUDENTS OF THE
PHILIPPINES (NUSP) CHAIRMAN
EINSTEIN RECEDES; COLLEGE
EDITORS GUILD OF THE
PHILIPPINES (CEGP) CHAIRMAN
VIJAE ALQUISOLA; and
STUDENT CHRISTIAN
MOVEMENT OF THE
PHILIPPINES (SCMP) CHAIRMAN
MA. CRISTINA ANGELA
GUEVARRA;
WALDEN F. BELLO and
LORETTA ANN P. ROSALES;
WOMEN TRIAL LAWYERS
ORGANIZATION OF THE
PHILIPPINES, represented by
YOLANDA QUISUMBINGJAVELLANA; BELLEZA
ALOJADO DEMAISIP; TERESITA
GANDIONCO-OLEDAN; MA.
VERENA KASILAG-VILLANUEVA;
MARILYN STA. ROMANA;
LEONILA DE JESUS; and
GUINEVERE DE LEON.
Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - - -x
ATTY. AMADOR Z. TOLENTINO,
JR., (IBP
GovernorSouthern Luzon), and
ATTY. ROLAND B. INTING
(IBP GovernorEastern Visayas),
Petitioners,

G.R. No. 191342

- versus JUDICIAL AND BAR COUNCIL

(JBC),
G.R. No. 191420
Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - x Present:
PHILIPPINE BAR ASSOCIATION,
INC.,
PUNO, C.J.,
Petitioner,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
- versus BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.
JUDICIAL AND BAR COUNCIL
and HER EXCELLENCY GLORIA
Promulgated:
MACAPAGAL-ARROYO,
March 17, 2010
Respondents.
x-----------------------------------------------------------------------------------------x
DECISION
BERSAMIN, J.:
The compulsory retirement of Chief Justice Reynato S. Puno by May 17,
2010 occurs just days after the coming presidential elections on May 10,
2010. Even before the event actually happens, it is giving rise to many legal
dilemmas. May the incumbent President appoint his successor, considering
that Section 15, Article VII (Executive Department) of the Constitution
prohibits the President or Acting President from making appointments
within two months immediately before the next presidential elections and
up to the end of his term, except temporary appointments to executive
positions when continued vacancies therein will prejudice public service or
endanger public safety? What is the relevance of Section 4 (1), Article VIII

(Judicial Department) of the Constitution, which provides that any vacancy

in the Supreme Court shall be filled within 90 days from the occurrence
thereof, to the matter of the appointment of his successor? May the Judicial
and Bar Council (JBC) resume the process of screening the candidates
nominated or being considered to succeed Chief Justice Puno, and submit
the list of nominees to the incumbent President even during the period of
the prohibition under Section 15, Article VII? Doesmandamus lie to compel
the submission of the shortlist of nominees by the JBC?
Precs of the Consolidated Cases
Petitioners Arturo M. De Castro and John G. Peralta respectively
commenced G.R. No. 191002[1] and G.R. No. 191149[2] as special civil
actions for certiorari andmandamus, praying that the JBC be compelled to
submit to the incumbent President the list of at least three nominees for the
position of the next Chief Justice.
In G.R.

No. 191032,[3] Jaime N.

Soriano, via his petition for

prohibition, proposes to prevent the JBC from conducting its search,

selection and nomination proceedings for the position of Chief Justice.
In G.R. No. 191057, a special civil action for mandamus,[4] the
Philippine Constitution Association (PHILCONSA) wants the JBC to submit
its list of nominees for the position of Chief Justice to be vacated by Chief
Justice Puno upon his retirement on May 17, 2010, because the incumbent
President is not covered by the prohibition that applies only to
appointments in the Executive Department.
In Administrative Matter No. 10-2-5-SC, [5] petitioner Estelito M. Mendoza, a
former Solicitor General, seeks a ruling from the Court for the guidance of
the JBC on whether Section 15, Article VII applies to appointments to the
Judiciary.
In G.R. No. 191342,[6] which the Court consolidated on March 9, 2010 with
the petitions earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland B.
Inting, Integrated Bar of the Philippines (IBP) Governors for Southern

Luzon and Eastern Visayas, respectively, want to enjoin and restrain the
JBC from submitting a list of nominees for the position of Chief Justice to
the President for appointment during the period provided for in Section 15,
Article VII.
All the petitions now before the Court pose as the principal legal question
whether the incumbent President can appoint the successor of Chief
Justice Puno upon his retirement. That question is undoubtedly impressed
with transcendental importance to the Nation, because the appointment of
the Chief Justice is any Presidents most important appointment.
A precedent frequently cited is In Re Appointments Dated March 30,
1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges
of the Regional Trial Court of Branch 62, Bago City and of Branch 24,
Cabanatuan City, respectively (Valenzuela),[7] by which the Court held that
Section 15, Article VII prohibited the exercise by the President of the power
to appoint to judicial positions during the period therein fixed.
In G.R. No. 191002, De Castro submits that the conflicting opinions
on the issue expressed by legal luminaries one side holds that the
incumbent President is prohibited from making appointments within two
months immediately before the coming presidential elections and until the
end of her term of office as President on June 30, 2010, while the other
insists that the prohibition applies only to appointments to executive
positions that may influence the election and, anyway, paramount national
interest justifies the appointment of a Chief Justice during the election
ban has impelled the JBC to defer the decision to whom to send its list of at
least three nominees, whether to the incumbent President or to her
successor.[8] He opines that the JBC is thereby arrogating unto itself the
judicial function that is not conferred upon it by the Constitution, which has
limited it to the task of recommending appointees to the Judiciary, but has
not empowered it to finally resolve constitutional questions, which is the
power vested only in the Supreme Court under the Constitution. As such,
he contends that the JBC acted with grave abuse of discretion in deferring
the submission of the list of nominees to the President; and that a final and
definitive resolution of the constitutional questions raised above would

diffuse (sic) the tension in the legal community that would go a long way to
keep and maintain stability in the judiciary and the political system. [9]
In G.R. No. 191032, Soriano offers the view that the JBC committed a
grave abuse of discretion amounting to lack or excess of its jurisdiction
when it resolved unanimously on January 18, 2010 to open the search,
nomination, and selection process for the position of Chief Justice to
succeed Chief Justice Puno, because the appointing authority for the
position of Chief Justice is the Supreme Court itself, the Presidents
authority being limited to the appointment of the Members of the Supreme
Court. Hence, the JBC should not intervene in the process, unless a
nominee is not yet a Member of the Supreme Court. [10]

For its part, PHILCONSA observes in its petition in G.R. No. 191057
that unorthodox and exceptional circumstances spawned by the discordant
interpretations, due perhaps to a perfunctory understanding, of Sec. 15, Art.
VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII of the Constitution have
bred a frenzied inflammatory legal debate on the constitutional provisions
mentioned that has divided the bench and the bar and the general public as
well, because of its dimensional impact to the nation and the people,
thereby fashioning transcendental questions or issues affecting the JBCs
proper exercise of its principal function of recommending appointees to the
Judiciary by submitting only to the President (not to the next President) a
list of at least three nominees prepared by the Judicial and Bar Council for
every vacancy from which the members of the Supreme Court and judges
of the lower courts may be appointed. [11] PHILCONSA further believes and
submits that now is the time to revisit and review Valenzuela, the strange
and exotic Decision of the Court en banc.[12]
Peralta states in his petition in G.R. No. 191149 that mandamus can
compel the JBC to immediately transmit to the President, within a
reasonable time, its nomination list for the position of chief justice upon the
mandatory retirement of Chief Justice Reynato S. Puno, in compliance with
its mandated duty under the Constitution in the event that the Court

resolves that the President can appoint a Chief Justice even during the
election ban under Section 15, Article VII of the Constitution. [13]
The petitioners in G.R. No. 191342 insist that there is an actual
controversy, considering that the JBC has initiated the process of receiving
applications for the position of Chief Justice and has in fact begun the
evaluation process for the applications to the position, and is perilously
near completing the nomination process and coming up with a list of
nominees for submission to the President, entering into the period of the
ban on midnight appointments on March 10, 2010, which only highlights the
pressing and compelling need for a writ of prohibition to enjoin such alleged
ministerial function of submitting the list, especially if it will be cone within
the period of the ban on midnight appointments. [14]
Antecedents
These cases trace their genesis to the controversy that has arisen
from the forthcoming compulsory retirement of Chief Justice Puno on May
17, 2010, or seven days after the presidential election. Under Section 4(1),
in relation to Section 9, Article VIII, that vacancy shall be filled within ninety
days from the occurrence thereof from a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy.
On December 22, 2009, Congressman Matias V. Defensor, an ex
officio member of the JBC, addressed a letter to the JBC, requesting that
the process for nominations to the office of the Chief Justice be
commenced immediately.
In its January 18, 2010 meeting en banc, therefore, the JBC passed a
resolution,[15] which reads:
The JBC, in its en banc meeting of January 18, 2010,
unanimously agreed to start the process of filling up the position
of Chief Justice to be vacated on May 17, 2010 upon the
retirement of the incumbent Chief Justice Honorable Reynato
S. Puno.
It will publish the opening of the position for applications or
recommendations; deliberate on the list of candidates; publish

the names of candidates; accept comments on or opposition to

the applications; conduct public interviews of candidates; and
prepare the shortlist of candidates.
As to the time to submit this shortlist to the proper
appointing authority, in the light of the Constitution, existing
laws and jurisprudence, the JBC welcomes and will consider all
views on the matter.
18 January 2010.

(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council

As a result, the JBC opened the position of Chief Justice for application or
recommendation,

and

published

for

that

purpose

its announcement dated January 20, 2010,[16] viz:

The Judicial and Bar Council (JBC) announces the opening
for application or recommendation, of the position of CHIEF
JUSTICE OF THE SUPREME COURT, which will be vacated
on 17 May 2010 upon the retirement of the incumbent Chief
Justice, HON. REYNATO S. PUNO.
Applications or recommendations for this position must be
submitted not later than 4 February 2010 (Thursday) to the JBC
Secretariat xxx:
The announcement was

published

on January

20,

2010 in

the Philippine Daily Inquirer and The Philippine Star.[17]

Conformably with its existing practice, the JBC automatically considered for
the position of Chief Justice the five most senior of the Associate Justices
of the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice
Renato C. Corona; Associate Justice Conchita Carpio Morales; Associate
Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio Eduardo
B. Nachura. However, the last two declined their nomination through letters
dated January 18, 2010 and January 25, 2010, respectively.[18]

Others either applied or were nominated. Victor Fernandez, the retired

Deputy Ombudsman for Luzon, applied, but later formally withdrew his
name from consideration through his letter dated February 8, 2010.
Candidates who accepted their nominations without conditions were
Associate Justice Renato C. Corona; Associate Justice Teresita J.
Leonardo-De Castro; Associate Justice Arturo D. Brion; and Associate
Justice Edilberto G. Sandoval (Sandiganbayan). Candidates who accepted
their nominations with conditions were Associate Justice Antonio T. Carpio
and

Associate

Justice

Conchita

Carpio

Morales. [19] Declining

their

nominations were Atty. Henry Villarica (via telephone conversation with the
Executive Officer of the JBC on February 5, 2010) and Atty. Gregorio M.
Batiller, Jr. (via telephone conversation with the Executive Officer of the
JBC on February 8, 2010).[20]
The JBC excluded from consideration former RTC Judge Florentino Floro
(for failure to meet the standards set by the JBC rules); and Special
Prosecutor Dennis Villa-Ignacio of the Office of the Ombudsman (due to
cases pending in the Office of the Ombudsman). [21]
In its meeting of February 8, 2010, the JBC resolved to proceed to the next
step of announcing the names of the following candidates to invite the
public to file their sworn complaint, written report, or opposition, if any, not
later than February 22, 2010, to wit: Associate Justice Carpio, Associate
Justice Corona, Associate Justice Carpio Morales, Associate Justice
Leonardo-De Castro, Associate Justice Brion, and Associate Justice
Sandoval.

The announcement came

out

in

the Philippine

Daily

Inquirer and The Philippine Star issues of February 13, 2010.[22]

Issues
Although it has already begun the process for the filling of the position
of Chief Justice Puno in accordance with its rules, the JBC is not yet
decided on when to submit to the President its list of nominees for the
position due to the controversy now before us being yet unresolved. In the

meanwhile, time is marching in quick step towards May 17, 2010 when the
vacancy occurs upon the retirement of Chief Justice Puno.
The actions of the JBC have sparked a vigorous debate not only
among legal luminaries, but also among non-legal quarters, and brought
out highly disparate opinions on whether the incumbent President can
appoint the next Chief Justice or not. Petitioner Mendoza notes that
in Valenzuela, which involved the appointments of two judges of the
Regional Trial Court, the Court addressed this issue now before us as an
administrative matter to avoid any possible polemics concerning the matter,
but he opines that the polemics leading to Valenzuela would be miniscule
[sic] compared to the polemics that have now erupted in regard to the
current controversy, and that unless put to a halt, and this may only be
achieved by a ruling from the Court, the integrity of the process and the
credibility of whoever is appointed to the position of Chief Justice, may
irreparably be impaired.[23]
Accordingly, we reframe the issues as submitted by each petitioner in the
order of the chronological filing of their petitions.

G.R. No. 191002

a. Does the JBC have the power and authority to resolve the
constitutional question of whether the incumbent President
can appoint a Chief Justice during the election ban period?
b. Does the incumbent President have the power and authority
to appoint during the election ban the successor of Chief
Justice Puno when he vacates the position of Chief Justice
on his retirement on May 17, 2010?
G.R. No. 191032
a. Is the power to appoint the Chief Justice vested in the
Supreme Court en banc?
G.R. No. 191057

a. Is the constitutional prohibition against appointment under

Section 15, Article VII of the Constitution applicable only to
positions in the Executive Department?
b. Assuming that the prohibition under Section 15, Article VII of
the Constitution also applies to members of the Judiciary,
may such appointments be excepted because they are
impressed with public interest or are demanded by the
exigencies of public service, thereby justifying these
appointments during the period of prohibition?
c. Does the JBC have the authority to decide whether or not to
include and submit the names of nominees who manifested
interest to be nominated for the position of Chief Justice on
the understanding that his/her nomination will be submitted
to the next President in view of the prohibition against
presidential appointments from March 11, 2010 until June
30, 2010?
A. M. No. 10-2-5-SC
a. Does Section 15, Article VII of the Constitution apply to
appointments to positions in the Judiciary under Section 9,
Article VIII of the Constitution?
b. May President Gloria Macapagal-Arroyo make appointments
to the Judiciary after March 10, 2010, including that for the
position of Chief Justice after Chief Justice Puno retires
on May 17, 2010?
G.R. No. 191149
a. Does the JBC have the discretion to withhold the submission
of the short list to President Gloria Macapagal-Arroyo?
G.R. No. 191342
a.

Does the JBC have the authority to submit the list of

nominees to the incumbent President without committing a
grave violation of the Constitution and jurisprudence
prohibiting
the
incumbent
President
from
making midnight appointments two months immediately
preceding the next presidential elections until the end of her
term?

b.

Is any act performed by the JBC, including the vetting of

the candidates for the position of Chief Justice,
constitutionally invalid in view of the JBCs illegal composition

allowing each member from the Senate and the House of

Representatives to have one vote each?

On February 16, 2010, the Court directed the JBC and the Office of
the Solicitor General (OSG) to comment on the consolidated petitions,
except that filed in G.R. No. 191342.
On February 26, 2010, the JBC submitted its comment, reporting
therein that the next stage of the process for the selection of the nominees
for the position of Chief Justice would be the public interview of the
candidates and the preparation of the short list of candidates, including the
interview of the constitutional experts, as may be needed. [24] It stated:[25]
Likewise, the JBC has yet to take a position on when to
submit the shortlist to the proper appointing authority,
in light of Section 4 (1), Article VIII of the Constitution,
which provides that vacancy in the Supreme Court shall
be filled within ninety (90) days from the occurrence
thereof, Section 15, Article VII of the Constitution
concerning the ban on Presidential appointments two (2)
months immediately before the next presidential
elections and up to the end of his term and Section 261
(g), Article XXII of the Omnibus Election Code of the
Philippines.
12. Since the Honorable Supreme Court is the final interpreter
of the Constitution, the JBC will be guided by its decision in
these consolidated Petitions and Administrative Matter.

On February 26, 2010, the OSG also submitted its comment,

essentially stating that the incumbent President can appoint the successor
of Chief Justice Puno upon his retirement by May 17, 2010.
The OSG insists that: (a) a writ of prohibition cannot issue to prevent
the JBC from performing its principal function under the Constitution to
recommend appointees in the Judiciary; (b) the JBCs function to
recommend is a continuing process, which does not begin with each
vacancy or end with each nomination, because the goal is to submit the list
of nominees to Malacaang on the very day the vacancy arises; [26] the JBC

was thus acting within its jurisdiction when it commenced and set in motion
the process of selecting the nominees to be submitted to the President for
the position of Chief Justice to be vacated by Chief Justice Puno; [27] (c)
petitioner Sorianos theory that it is the Supreme Court, not the President,
who has the power to appoint the Chief Justice, is incorrect, and proceeds
from his misinterpretation of the phrase members of the Supreme Court
found in Section 9, Article VIII of the Constitution as referring only to the
Associate Justices, to the exclusion of the Chief Justice; [28] (d) a writ
of mandamus can issue to compel the JBC to submit the list of nominees to
the President, considering that its duty to prepare the list of at least three
nominees is unqualified, and the submission of the list is a ministerial act
that the JBC is mandated to perform under the Constitution; as such, the
JBC, the nature of whose principal function is executive, is not vested with
the power to resolve who has the authority to appoint the next Chief Justice
and, therefore, has no discretion to withhold the list from the
President; [29] and (e) a writ of mandamus cannot issue to compel the JBC
to include or exclude particular candidates as nominees, considering that
there is no imperative duty on its part to include in or exclude from the list
particular individuals, but, on the contrary, the JBCs determination of who it
nominates to the President is an exercise of a discretionary duty.[30]
The OSG contends that the incumbent President may appoint the
next Chief Justice, because the prohibition under Section 15, Article VII of
the Constitution does not apply to appointments in the Supreme Court. It
argues that any vacancy in the Supreme Court must be filled within 90 days
from its occurrence, pursuant to Section 4(1), Article VIII of the
Constitution; [31] that in their deliberations on the mandatory period for the
appointment of Supreme Court Justices, the framers neither mentioned nor
referred to the ban against midnight appointments, or its effects on such
period, or vice versa;[32] that had the framers intended the prohibition to
apply to Supreme Court appointments, they could have easily expressly
stated so in the Constitution, which explains why the prohibition found in
Article VII (Executive Department) was not written in Article VIII (Judicial
Department); and that the framers also incorporated in Article VIII ample
restrictions or limitations on the Presidents power to appoint members of
the Supreme Court to ensure its independence from political vicissitudes

and its insulation from political pressures, [33] such as stringent qualifications
for the positions, the establishment of the JBC, the specified period within
which the President shall appoint a Supreme Court Justice.
The OSG posits that although Valenzuela involved the appointment
of RTC Judges, the situation now refers to the appointment of the next
Chief Justice to which the prohibition does not apply; that, at any
rate, Valenzuela even recognized that there might be the imperative need
for an appointment during the period of the ban, like when the membership
of the Supreme Court should be so reduced that it will have no quorum, or
should the voting on a particular important question requiring expeditious
resolution be divided;[34] and that Valenzuela also recognized that the filling
of vacancies in the Judiciary is undoubtedly in the public interest, most
especially if there is any compelling reason to justify the making of the
appointments during the period of the prohibition. [35]
Lastly, the OSG urges that there are now undeniably compelling
reasons for the incumbent President to appoint the next Chief Justice, to
wit: (a) a deluge of cases involving sensitive political issues is quite
expected;[36] (b) the Court acts as the Presidential Electoral Tribunal (PET),
which, sitting en banc, is the sole judge of all contests relating to the
election, returns, and qualifications of the President and Vice President
and, as such, has the power to correct manifest errors on the statement of
votes (SOV) and certificates of canvass (COC); [37] (c) if history has shown
that during ordinary times the Chief Justice was appointed immediately
upon the occurrence of the vacancy, from the time of the effectivity of the
Constitution, there is now even more reason to appoint the next Chief
Justice immediately upon the retirement of Chief Justice Puno; [38] and (d)
should the next Chief Justice come from among the incumbent Associate
Justices of the Supreme Court, thereby causing a vacancy, it also becomes
incumbent upon the JBC to start the selection process for the filling up of
the vacancy in accordance with the constitutional mandate. [39]

On March

9,

2010,

the

Court

comments/oppositions-in-intervention, to wit:

admitted

the

following

(a) The opposition-in-intervention dated February 22, 2010 of

Atty. Peter Irving Corvera (Corvera);[40]
(b) The opposition-in-intervention dated February 22, 2010 of
Atty. Christian Robert S. Lim (Lim);
(c) The opposition-in-intervention dated February 23, 2010 of
Atty. Alfonso V. Tan, Jr. (Tan);
(d) The comment/opposition-in-intervention dated March 1,
2010 of the National Union of Peoples Lawyers (NUPL);
(e) The opposition-in-intervention dated February 25, 2010 of
Atty. Marlou B. Ubano (Ubano);
(f) The opposition-in-intervention dated February 25, 2010 of
Integrated Bar of the Philippines-Davao del Sur Chapter and
its Immediate Past President, Atty. Israelito P. Torreon (IBPDavao del Sur);
(g) The opposition-in-intervention dated February 26, 2010 of
Atty. Mitchell John L. Boiser (Boiser);
(h)The consolidated comment/opposition-in-intervention dated
February 26, 2010 of BAYAN Chairman Dr. Carolina P.
Araullo; BAYAN Secretary General Renato M. Reyes, Jr.;
Confederation for Unity, Recognition and Advancement of
Government Employees (COURAGE) Chairman Ferdinand
Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY)
Secretary
General
Gloria
Arellano;
Alyansa
ng
Nagkakaisang Kabataan ng Samayanan Para sa Kaunlaran
(ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo ang
Pag-asa Convenor Alvin Peters; League of Filipino Students
(LFS) Chairman James Mark Terry Lacuanan Ridon;
National Union of Students of the Philippines (NUSP)
Chairman Einstein Recedes, College Editors Guild of the
Philippines (CEGP) Chairman Vijae Alquisola; and Student
Christian Movement of the Philippines (SCMP) Chairman
Ma. Cristina Angela Guevarra (BAYAN et al.);
(i)

The opposition-in-intervention dated March 3, 2010 of

Walden F. Bello and Loretta Ann P. Rosales (Bello et al.);
and

(j) The consolidated comment/opposition-in-intervention dated

March 4, 2010 of the Women Trial Lawyers Organization of

the Philippines (WTLOP), represented by Atty. Yolanda

Quisumbing-Javellana; Atty. Belleza Alojado Demaisip; Atty.
Teresita Gandionco-Oledan; Atty. Ma. Verena KasilagVillanueva; Atty. Marilyn Sta. Romana; Atty. Leonila de
Jesus; and Atty. Guinevere de Leon (WTLOP).

Intervenors

Tan, WTLOP, BAYAN et

al., Corvera,

IBP

Davao

del Sur, and NUPL take the position that De Castros petition was bereft of
any basis, because under Section 15, Article VII, the outgoing President is
constitutionally banned from making any appointments from March 10,
2010 until June 30, 2010, including the appointment of the successor of
Chief Justice Puno. Hence, mandamus does not lie to compel the JBC to
submit the list of nominees to the outgoing President if the constitutional
prohibition is already in effect. Tan adds that the prohibition against
midnight appointments was applied by the Court to the appointments to the
Judiciary made by then President Ramos, with the Court holding that the
duty of the President to fill the vacancies within 90 days from occurrence of
the vacancies (for the Supreme Court) or from the submission of the list (for
all other courts) was not an excuse to violate the constitutional prohibition.
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and
Bello et al. oppose the insistence that Valenzuela recognizes the possibility
that the President may appoint the next Chief Justice if exigent
circumstances warrant the appointment, because that recognition is obiter
dictum; and aver that the absence of a Chief Justice or even an Associate
Justice does not cause epic damage or absolute disruption or paralysis in
the operations of the Judiciary. They insist that even without the successor
of Chief Justice Puno being appointed by the incumbent President, the
Court is allowed to sit and adjudge en banc or in divisions of three, five or
seven members at its discretion; that a full membership of the Court is not
necessary; that petitioner De Castros fears are unfounded and baseless,
being based on a mere possibility, the occurrence of which is entirely
unsure; that it is not in the national interest to have a Chief Justice whose
appointment is unconstitutional and, therefore, void; and that such a
situation will create a crisis in the judicial system and will worsen an already
vulnerable political situation.

ice is imperative for the stability of the judicial system and the political
situation in the country when the election-related questions reach the Court
as false, because there is an existing law on filling the void brought about
by a vacancy in the office of Chief Justice; that the law is Section 12 of the
Judiciary Act of 1948, which has not been repealed by Batas
Pambansa Blg. 129 or any other law; that a temporaryor an acting Chief
Justice is not anathema to judicial independence; that the designation of
an acting Chief Justice is not only provided for by law, but is also dictated
by practical necessity; that the practicewas intended to be enshrined in the
1987 Constitution, but the Commissioners decided not to write it in the
Constitution on account of the settled practice; that the practice
was followed under the 1987 Constitution, when, in 1992, at the end of the
term of Chief Justice Marcelo B. Fernan, Associate Justice Andres Narvasa
assumed the position as Acting Chief Justice prior to his official
appointment as Chief Justice; that said filling up of a vacancy in the office
of the Chief Justice was acknowledged and even used by analogy in the
case of the vacancy of the Chairman of the Commission on Elections,
perBrillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme
Court has shown that this rule of succession has been repeatedly observed
and has become a part of its tradition.
Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that
the Omnibus Election Code penalizes as an election offense the act of any
government official who appoints, promotes, or gives any increase in salary
or remuneration or privilege to any government official or employee during
the period of 45 days before a regular election; that the provision covers all
appointing heads, officials, and officers of a government office, agency or
instrumentality, including the President; that for the incumbent President to
appoint the next Chief Justice upon the retirement of Chief Justice Puno, or
during the period of the ban under the Omnibus Election Code, constitutes
an election offense; that even an appointment of the next Chief Justice
prior to the election ban is fundamentally invalid and without effect because
there can be no appointment until a vacancy occurs; and that the vacancy
for the position can occur only by May 17, 2010.

Intervenor Boiser adds that De Castros prayer to compel the

submission of nominees by the JBC to the incumbent President is offtangent because the position of Chief Justice is still not vacant; that to
speak of a list, much more a submission of such list, before a vacancy

occurs is glaringly premature; that the proposed advance appointment by

the incumbent President of the next Chief Justice will be unconstitutional;
and that no list of nominees can be submitted by the JBC if there is no
vacancy.
All the intervenors-oppositors submit that Section 15, Article VII makes no
distinction between the kinds of appointments made by the President; and
that the Court, inValenzuela, ruled that the appointments by the President
of the two judges during the prohibition period were void.
Intervenor WTLOP posits that Section 15, Article VII of the 1987
Constitution does not apply only to the appointments in the Executive
Department, but also to judicial appointments, contrary to the submission of
PHILCONSA;

that

Section

15

does

not

distinguish;

and

that Valenzuela already interpreted the prohibition as applicable to judicial

appointments.
Intervenor WTLOP further posits that petitioner Sorianos contention
that the power to appoint the Chief Justice is vested, not in the President,
but in the Supreme Court, is utterly baseless, because the Chief Justice is
also a Member of the Supreme Court as contemplated under Section 9,
Article VIII; and that, at any rate, the term members was interpreted
in Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to the
Chief Justice and the Associate Justices of the Supreme Court; that
PHILCONSAs prayer that the Court pass a resolution declaring that
persons who manifest their interest as nominees, but with conditions, shall
not be considered nominees by the JBC is diametrically opposed to the
arguments in the body of its petition; that such glaring inconsistency
between the allegations in the body and the relief prayed for highlights the
lack of merit of PHILCONSAs petition; that the role of the JBC cannot be
separated from the constitutional prohibition on the President; and that the
Court must direct the JBC to follow the rule of law, that is, to submit the list
of nominees only to the next duly elected President after the period of the
constitutional ban against midnight appointments has expired.

Oppositor IBP Davao del Sur opines that the JBC because it is
neither a judicial nor a quasi-judicial body has no duty under the
Constitution to resolve the question of whether the incumbent President
can appoint a Chief Justice during the period of prohibition; that even if the
JBC has already come up with a short list, it still has to bow to the strict
limitations under Section 15, Article VII; that should the JBC defer
submission of the list, it is not arrogating unto itself a judicial function, but
simply respecting the clear mandate of the Constitution; and that the
application of the general rule in Section 15, Article VII to the Judiciary does
not violate the principle of separation of powers, because said provision is
an exception.
Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBCs
act of nominating appointees to the Supreme Court is purely ministerial and
does not involve the exercise of judgment; that there can be no default on
the part of the JBC in submitting the list of nominees to the President,
considering that the call for applications only begins from the occurrence of
the vacancy in the Supreme Court; and that the commencement of the
process of screening of applicants to fill the vacancy in the office of the
Chief Justice only begins from the retirement on May 17, 2010, for, prior to
this date, there is no definite legal basis for any party to claim that the
submission or non-submission of the list of nominees to the President by
the JBC is a matter of right under law.
The main question presented in all the filings herein because it
involves

two

seemingly

conflicting

provisions

of

the

Constitution imperatively demands the attention and resolution of this

Court, the only authority that can resolve the question definitively and
finally. The imperative demand rests on the ever-present need, first, to
safeguard the independence, reputation, and integrity of the entire
Judiciary, particularly this Court, an institution that has been unnecessarily
dragged into the harsh polemics brought on by the controversy; second, to
settle once and for all the doubt about an outgoing Presidents power to
appoint to the Judiciary within the long period starting two months before
the presidential elections until the end of the presidential term; and third, to
set a definite guideline for the JBC to follow in the discharge of its primary

office of screening and nominating qualified persons for appointment to the

Judiciary.
Thus, we resolve.
Ruling of the Court
Locus Standi of Petitioners
The preliminary issue to be settled is whether or not the petitioners
have locus standi.
Black defines locus standi as a right of appearance in a court of
justice on a given question.[41] In public or constitutional litigations, the Court
is often burdened with the determination of the locus standi of the
petitioners due to the ever-present need to regulate the invocation of the
intervention of the Court to correct any official action or policy in order to
avoid obstructing the efficient functioning of public officials and offices
involved in public service. It is required, therefore, that the petitioner must
have a personal stake in the outcome of the controversy, for, as indicated
in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:[42]
The question on legal standing is whether such parties
have alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult
constitutional questions.[43] Accordingly, it has been held
that the interest of a person assailing the constitutionality
of a statute must be direct and personal. He must be able
to show, not only that the law or any government act is
invalid, but also that he sustained or is in imminent danger
of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in
some indefinite way. It must appear that the person
complaining has been or is about to be denied some right
or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by
reason of the statute or act complained of.[44]

It is true that as early as in 1937, in People v. Vera,[45] the Court

adopted the direct injury test for determining whether a petitioner in a public
action had locus standi.There, the Court held that the person who would
assail the validity of a statute must have a personal and substantial interest
in the case such that he has sustained, or will sustain direct injury as a
result. Vera was followed in Custodio v. President of the Senate,[46] Manila
Race Horse Trainers Association v. De la Fuente,[47] Anti-Chinese League
of the Philippines v. Felix,[48] and Pascual v. Secretary of Public Works.[49]
Yet, the Court has also held that the requirement of locus standi,
being a mere procedural technicality, can be waived by the Court in the
exercise of its discretion. For instance, in 1949, in Araneta v. Dinglasan,
[50]

the Court liberalized the approach when the cases had transcendental

importance. Some notable controversies whose petitioners did not pass

the direct injury test were allowed to be treated in the same way as
in Araneta v. Dinglasan.[51]
In the 1975 decision in Aquino v. Commission on Elections,[52] this Court
decided to resolve the issues raised by the petition due to their far-reaching
implications, even if the petitioner had no personality to file the suit. The
liberal approach of Aquino v. Commission on Elections has been adopted
in several notable cases, permitting ordinary citizens,legislators, and civic
organizations to bring their suits involving the constitutionality or validity of
laws, regulations, and rulings.[53]
However, the assertion of a public right as a predicate for challenging
a supposedly illegal or unconstitutional executive or legislative action rests
on the theory that the petitioner represents the public in general. Although
such petitioner may not be as adversely affected by the action complained
against as are others, it is enough that he sufficiently demonstrates in his
petition that he is entitled to protection or relief from the Court in the
vindication of a public right.
Quite often, as here, the petitioner in a public action sues as
a citizen or taxpayer to gain locus standi. That is not surprising, for even if
the issue may appear to concern only the public in general, such capacities

nonetheless equip the petitioner with adequate interest to sue. In David v.

Macapagal-Arroyo,[54] the Court aptly explains why:
Case law in most jurisdictions now allows both citizen and
taxpayer standing in public actions. The distinction was first laid
down in Beauchamp v. Silk,[55] where it was held that the plaintiff
in a taxpayers suit is in a different category from the plaintiff in a
citizens suit. In the former, the plaintiff is affected by the
expenditure of public funds, while in the latter, he is but the
mere instrument of the public concern. As held by the New
York Supreme Court in People ex rel Case v. Collins:[56] In
matter of mere public right, howeverthe people are the real
partiesIt is at least the right, if not the duty, of every citizen
to interfere and see that a public offence be properly
pursued and punished, and that a public grievance be
remedied. With respect to taxpayers suits, Terr v.
Jordan[57] held that the right of a citizen and a taxpayer to
maintain an action in courts to restrain the unlawful use of
public funds to his injury cannot be denied. [58]

Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032)

and Peralta (G.R. No. 191149) all assert their right as citizens filing their
petitions on behalf of the public who are directly affected by the issue of the
appointment of the next Chief Justice. De Castro and Soriano further claim
standing as taxpayers, with Soriano averring that he is affected by the
continuing proceedings in the JBC, which involve unnecessary, if not, illegal
disbursement of public funds.[59]
PHILCONSA alleges itself to be a non-stock, non-profit organization
existing under the law for the purpose of defending, protecting, and
preserving the Constitution and promoting its growth and flowering. It also
alleges that the Court has recognized its legal standing to file cases on
constitutional issues in several cases.[60]
In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the
Philippines, a member of the Philippine Bar engaged in the active practice
of law, and a former Solicitor General, former Minister of Justice, former
Member of the Interim Batasang Pambansa and the Regular Batasang

Pambansa, and former member of the Faculty of the College of Law of the
University of the Philippines.
The petitioners in G.R. No. 191342 are the Governors of the
Integrated Bar of the Philippines (IBP) for Southern Luzon and Eastern
Visayas. They allege that they have the legal standing to enjoin the
submission of the list of nominees by the JBC to the President, for [a]n
adjudication of the proper interpretation and application of the constitutional
ban on midnight appointments with regard to respondent JBCs function in
submitting the list of nominees is well within the concern of petitioners, who
are duty bound to ensure that obedience and respect for the Constitution is
upheld, most especially by government offices, such as respondent JBC,
who are specifically tasked to perform crucial functions in the whole
scheme of our democratic institution. They further allege that, reposed in
them as members of the Bar, is a clear legal interest in the process of
selecting the members of the Supreme Court, and in the selection of the
Chief Justice, considering that the person appointed becomes a member of
the body that has constitutional supervision and authority over them and
other members of the legal profession.[61]
The Court rules that the petitioners have each demonstrated
adequate interest in the outcome of the controversy as to vest them with
the requisite locus standi. The issues before us are of transcendental
importance to the people as a whole, and to the petitioners in particular.
Indeed, the issues affect everyone (including the petitioners), regardless of
ones personal interest in life, because they concern that great doubt about
the authority of the incumbent President to appoint not only the successor
of the retiring incumbent Chief Justice, but also others who may serve in
the Judiciary, which already suffers from a far too great number of
vacancies in the ranks of trial judges throughout the country.
In any event, the Court retains the broad discretion to waive the
requirement of legal standing in favor of any petitioner when the matter
involved has transcendental

importance,

liberalization of the requirement.[62]

or

otherwise

requires

Yet, if any doubt still lingers about the locus standi of any petitioner,
we dispel the doubt now in order to remove any obstacle or obstruction to
the resolution of the essential issue squarely presented herein. We are not
to shirk from discharging our solemn duty by reason alone of an
obstacle more technical

than

otherwise.

In Agan,

Jr.

v.Philippine

International Air Terminals Co., Inc.,[63] we pointed out: Standing is a

peculiar concept in constitutional law because in some cases, suits are not
brought by parties who have been personally injured by the operation of a
law or any other government act but by concerned citizens, taxpayers or
voters who actually sue in the public interest. But even if, strictly speaking,
the petitioners are not covered by the definition, it is still within the wide
discretion of the Court to waive the requirement and so remove the
impediment to its addressing and resolving the serious constitutional
questions raised.[64]
Justiciability
Intervenor NUPL maintains that there is no actual case or controversy
that is appropriate or ripe for adjudication, considering that although the
selection process commenced by the JBC is going on, there is yet no final
list of nominees; hence, there is no imminent controversy as to whether
such list must be submitted to the incumbent President, or reserved for
submission to the incoming President.
Intervenor Tan raises the lack of any actual justiciable controversy
that is ripe for judicial determination, pointing out that petitioner De Castro
has not even shown that the JBC has already completed its selection
process and is now ready to submit the list to the incumbent President; and
that petitioner De Castro is merely presenting a hypothetical scenario that
is clearly not sufficient for the Court to exercise its power of judicial review.
Intervenors Corvera and Lim separately opine that De Castros
petition rests on an overbroad and vague allegation of political tension,
which is insufficient basis for the Court to exercise its power of judicial
review.

Intervenor BAYAN et al. contend that the petitioners are seeking a

mere advisory opinion on what the JBC and the President should do, and
are not invoking any issues that are justiciable in nature.
Intervenors Bello et al. submit that there exist no conflict of legal
rights and no assertion of opposite legal claims in any of the petitions; that
PHILCONSA does not allege any action taken by the JBC, but simply avers
that the conditional manifestations of two Members of the Court, accented
by the divided opinions and interpretations of legal experts, or associations
of lawyers and law students on the issues published in the daily
newspapers are matters of paramount and transcendental importance to
the bench, bar and general public; that PHILCONSA fails not only to cite
any legal duty or allege any failure to perform the duty, but also to indicate
what specific action should be done by the JBC; that Mendoza does not
even attempt to portray the matter as a controversy or conflict of rights, but,
instead, prays that the Court should rule for the guidance of the JBC; that
the fact that the Court supervises the JBC does not automatically imply that
the Court can rule on the issues presented in the Mendoza petition,
because supervision involves oversight, which means that the subordinate
officer or body must first act, and if such action is not in accordance with
prescribed rules, then, and only then, may the person exercising oversight
order the action to be redone to conform to the prescribed rules; that the
Mendoza petition does not allege that the JBC has performed a specific act
susceptible to correction for being illegal or unconstitutional; and that the
Mendoza petition asks the Court to issue an advisory ruling, not to exercise
its power of supervision to correct a wrong act by the JBC, but to declare
the state of the law in the absence of an actual case or controversy.
We hold that the petitions set forth an actual case or controversy that
is ripe for judicial determination. The reality is that the JBC already
commenced the proceedings for the selection of the nominees to be
included in a short list to be submitted to the President for consideration of
which of them will succeed Chief Justice Puno as the next Chief Justice.
Although the position is not yet vacant, the fact that the JBC began the
process of nomination pursuant to its rules and practices, although it has
yet to decide whether to submit the list of nominees to the incumbent

outgoing President or to the next President, makes the situation ripe for
judicial determination, because the next steps are the public interview of
the candidates, the preparation of the short list of candidates, and the
interview of constitutional experts, as may be needed.
A part of the question to be reviewed by the Court is whether the JBC
properly initiated the process, there being an insistence from some of the
oppositors-intervenors that the JBC could only do so once the vacancy has
occurred (that is, after May 17, 2010). Another part is, of course, whether
the JBC may resume its process until the short list is prepared, in view of
the provision of Section 4(1), Article VIII, which unqualifiedly requires the
President to appoint one from the short list to fill the vacancy in the
Supreme Court (be it the Chief Justice or an Associate Justice) within 90
days from the occurrence of the vacancy.
The ripeness of the controversy for judicial determination may not be
doubted. The challenges to the authority of the JBC to open the process of
nomination and to continue the process until the submission of the list of
nominees; the insistence of some of the petitioners to compel the JBC
through mandamus to submit the short list to the incumbent President; the
counter-insistence of the intervenors to prohibit the JBC from submitting the
short list to the incumbent President on the ground that said list should be
submitted instead to the next President; the strong position that the
incumbent President is already prohibited under Section 15, Article VII from
making any appointments, including those to the Judiciary, starting on May
10, 2010 until June 30, 2010; and the contrary position that the incumbent
President is not so prohibited are only some of the real issues for
determination. All such issues establish the ripeness of the controversy,
considering that for some the short list must be submitted before the
vacancy actually occurs byMay 17, 2010. The outcome will not be an
abstraction, or a merely hypothetical exercise. The resolution of the
controversy will surely settle with finality the nagging questions that are
preventing the JBC from moving on with the process that it already began,
or that are reasons persuading the JBC to desist from the rest of the
process.

We need not await the occurrence of the vacancy by May 17, 2010 in
order for the principal issue to ripe for judicial determination by the Court. It
is enough that one alleges conduct arguably affected with a constitutional
interest, but seemingly proscribed by the Constitution. A reasonable
certainty of the occurrence of the perceived threat to a constitutional
interest is sufficient to afford a basis for bringing a challenge, provided the
Court has sufficient facts before it to enable it to intelligently adjudicate the
issues.[65]Herein, the facts are not in doubt, for only legal issues remain.
Substantive Merits
I
Prohibition under Section 15, Article VII does not apply
to appointments to fill a vacancy in the Supreme Court
or to other appointments to the Judiciary

Two constitutional provisions are seemingly in conflict.

The first, Section 15, Article VII (Executive Department), provides:
Section 15. Two months immediately before the next
presidential elections and up to the end of his term, a President
or Acting President shall not make appointments, except
temporary appointments to executive positions when continued
vacancies therein will prejudice public service or endanger
public safety.
The other, Section 4 (1), Article VIII (Judicial Department), states:
Section 4. (1). The Supreme Court shall be composed of a
Chief Justice and fourteen Associate Justices. It may sit en
banc or in its discretion, in division of three, five, or seven
Members. Any vacancy shall be filled within ninety days from
the occurrence thereof.

In the consolidated petitions, the petitioners, with the exception of

Soriano, Tolentino and Inting, submit that the incumbent President can
appoint the successor of Chief Justice Puno upon his retirement on May
17, 2010, on the ground that the prohibition against presidential

appointments under Section 15, Article VII does not extend to appointments
in the Judiciary.
The Court agrees with the submission.
First. The

records

of

the

deliberations

of

the

Constitutional

Commission reveal that the framers devoted time to meticulously drafting,

styling, and arranging the Constitution. Such meticulousness indicates that
the organization and arrangement of the provisions of the Constitution were
not arbitrarily or whimsically done by the framers, but purposely made to
reflect their intention and manifest their vision of what the Constitution
should contain.
The Constitution consists of 18 Articles, three of which embody the
allocation of the awesome powers of government among the three great
departments, the Legislative (Article VI), the Executive (Article VII), and the
Judicial Departments (Article VIII). The arrangement was a true recognition
of the principle of separation of powers that underlies the political structure,
as Constitutional Commissioner Adolfo S. Azcuna (later a worthy member
of the Court) explained in his sponsorship speech:
We have in the political part of this Constitution opted for
the separation of powers in government because we believe
that the only way to protect freedom and liberty is to separate
and divide the awesome powers of government. Hence, we
return to the separation of powers doctrine and the legislative,
executive and judicial departments.[66]

As can be seen, Article VII is devoted to the Executive Department,

and, among others, it lists the powers vested by the Constitution in the
President. The presidential power of appointment is dealt with in Sections
14, 15 and 16 of the Article.
Article VIII is dedicated to the Judicial Department and defines the
duties and qualifications of Members of the Supreme Court, among others.
Section 4(1) and Section 9 of this Article are the provisions specifically

providing for the appointment of Supreme Court Justices. In particular,

Section 9 states that the appointment of Supreme Court Justices can only
be made by the President upon the submission of a list of at least three
nominees by the JBC; Section 4(1) of the Article mandates the President to
fill the vacancy within 90 days from the occurrence of the vacancy.
Had the framers intended to extend the prohibition contained in
Section 15, Article VII to the appointment of Members of the Supreme
Court, they could have explicitly done so. They could not have ignored the
meticulous

ordering

of

the

provisions.

They

would

have easily and surely written the prohibition made explicit in Section 15,
Article VII as being equally applicable to the appointment of Members of
the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article
VIII. That such specification was not done only reveals that the prohibition
against the President or Acting President making appointments within two
months before the next presidential elections and up to the end of the
Presidents or Acting Presidents term does not refer to the Members of the
Supreme Court.

Although Valenzuela[67] came to hold that the prohibition covered

even

judicial

appointments,

it

cannot

be

disputed

that

the Valenzuela dictum did not firmly rest on the deliberations of the
Constitutional Commission. Thereby, the confirmation made to the JBC by
then Senior Associate Justice Florenz D. Regalado of this Court, a former
member of the Constitutional Commission, about the prohibition not being
intended

to

apply

to

the

appointments

to

the

Judiciary,

which

confirmation Valenzuela even expressly mentioned, should prevail.

Relevantly, Valenzuela adverted to the intent of the framers in the genesis
of Section 4 (1), Article VIII, viz:
V . Intent of the Constitutional Commission
The journal of the Commission which drew up the present
Constitution discloses that the original proposal was to have an

eleven-member Supreme Court. Commissioner Eulogio Lerum

wanted to increase the number of Justices to fifteen. He also
wished to ensure that that number would not be reduced for
any appreciable length of time (even only temporarily), and to
this end proposed that any vacancy must be filled within two
months from the date that the vacancy occurs. His proposal to
have a 15-member Court was not initially adopted. Persisting
however in his desire to make certain that the size of the Court
would not be decreased for any substantial period as a result of
vacancies, Lerum proposed the insertion in the provision (anent
the Courts membership) of the same mandate that IN CASE
OF ANY VACANCY, THE SAME SHALL BE FILLED WITHIN
TWO MONTHS FROM OCCURRENCE THEREOF. He later
agreed to suggestions to make the period three, instead of two,
months. As thus amended, the proposal was approved. As it
turned out, however, the Commission ultimately agreed on a
fifteen-member Court. Thus it was that the section fixing the
composition of the Supreme Court came to include a
command to fill up any vacancy therein within 90 days
from its occurrence.
In this connection, it may be pointed out that that instruction
that any vacancy shall be filled within ninety days (in the last
sentence of Section 4 (1) of Article VIII) contrasts with the
prohibition in Section 15, Article VII, which is couched in
stronger negative language - that a President or Acting
President shall not make appointments
The commission later approved a proposal of
Commissioner Hilario G. Davide, Jr. (now a Member of this
Court) to add to what is now Section 9 of Article VIII, the
following paragraph: WITH RESPECT TO LOWER COURTS,
THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN
NINETY DAYS FROM THE SUBMISSION OF THE LIST (of
nominees by the Judicial and Bar Council to the
President). Davide stated that his purpose was to provide a
uniform rule for lower courts. According to him, the 90-day
period should be counted from submission of the list of
nominees to the President in view of the possibility that the
President might reject the list submitted to him and the JBC
thus need more time to submit a new one.
On the other hand, Section 15, Article VII - which in effect
deprives the President of his appointing power two months
immediately before the next presidential elections up to the end
ofhis term - was approved without discussion.[68]

However, the reference to the records of the Constitutional Commission did

not advance or support the result in Valenzuela. Far to the contrary, the
records disclosed the express intent of the framers to enshrine in the
Constitution, upon the initiative of Commissioner Eulogio Lerum, a
command [to the President] to fill up any vacancy therein within 90 days
from its occurrence, which even Valenzuela conceded.[69] The exchanges
during deliberations of the Constitutional Commission on October 8,
1986 further show that the filling of a vacancy in the Supreme Court within
the 90-day period was a true mandate for the President, viz:
MR. DE CASTRO. I understand that our justices now in the
Supreme Court, together with the Chief Justice, are only 11.
MR. CONCEPCION. Yes.
MR. DE CASTRO. And the second sentence of this
subsection reads: Any vacancy shall be filled within ninety
days from the occurrence thereof.
MR. CONCEPCION. That is right.
MR. DE CASTRO. Is this now a mandate to the executive
to fill the vacancy?
MR. CONCEPCION. That is right. That is borne out of the
fact that in the past 30 years, seldom has the Court had a
complete complement.[70]
Moreover, the usage in Section 4(1), Article VIII of the word shall an
imperative, operating to impose a duty that may be enforced [71] should not
be disregarded. Thereby, Sections 4(1) imposes on the President
the imperative duty to make an appointment of a Member of the Supreme
Court within 90 days from the occurrence of the vacancy. The failure by the
President to do so will be a clear disobedience to the Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the
President to fill the vacancy in the Supreme Court was undoubtedly a
special provision to establish adefinite mandate for the President as the
appointing power, and cannot be defeated by mere judicial interpretation
in Valenzuela to the effect that Section 15, Article VII prevailed because it
was couched in stronger negative language. Such interpretation even

turned out to be conjectural, in light of the records of the Constitutional

Commissions deliberations on Section 4 (1), Article VIII.
How Valenzuela justified its pronouncement and result is hardly
warranted. According to an authority on statutory construction: [72]
xxx the court should seek to avoid any conflict in the
provisions of the statute by endeavoring to harmonize and
reconcile every part so that each shall be effective. It is not
easy to draft a statute, or any other writing for that matter, which
may not in some manner contain conflicting provisions. But
what appears to the reader to be a conflict may not have
seemed so to the drafter. Undoubtedly, each provision was
inserted for a definite reason. Often by considering the
enactment in its entirety, what appears to be on its face a
conflict may be cleared up and the provisions reconciled.
Consequently, that construction which will leave every word
operative will be favored over one which leaves some word or
provision meaningless because of inconsistency. But a word
should not be given effect, if to do so gives the statute a
meaning contrary to the intent of the legislature. On the other
hand, if full effect cannot be given to the words of a statute, they
must be made effective as far as possible. Nor should the
provisions of a statute which are inconsistent be harmonized at
a sacrifice of the legislative intention. It may be that two
provisions are irreconcilable; if so, the one which expresses the
intent of the law-makers should control. And the arbitrary rule
has been frequently announced that where there is an
irreconcilable conflict between the different provisions of a
statute, the provision last in order of position will prevail, since it
is the latest expression of the legislative will. Obviously, the rule
is subject to deserved criticism. It is seldom applied, and
probably then only where an irreconcilable conflict exists
between different sections of the same act, and after all other
means of ascertaining the meaning of the legislature have been
exhausted.
Where
the
conflict
is
between
two
statutes, more may be said in favor of the rules application,
largely because of the principle of implied repeal.

In this connection, PHILCONSAs urging of a revisit and a review

of Valenzuela is timely and appropriate. Valenzuela arbitrarily ignored the
express intent of the Constitutional Commission to have Section 4 (1),
Article VIII stand independently of any other provision, least of all one found

in Article VII. It further ignored that the two provisions had no irreconcilable
conflict, regardless of Section 15, Article VII being couched in the negative.
As judges, we are not to unduly interpret, and should not accept an
interpretation that defeats the intent of the framers. [73]
Consequently, prohibiting the incumbent President from appointing a Chief
Justice on the premise that Section 15, Article VII extends to appointments
in

the

Judiciary

cannot

be

sustained.

misinterpretation

like Valenzuela should not be allowed to last after its false premises have
been exposed.[74] It will not do to merely distinguish Valenzuela from these
cases, for the result to be reached herein is entirely incompatible with
what Valenzuela decreed. Consequently, Valenzuela now deserves to be
quickly sent to the dustbin of the unworthy and forgettable.
We reverse Valenzuela.
Second. Section 15, Article VII does not apply as well to
all other appointments in the Judiciary.
There is no question that one of the reasons underlying the adoption
of

Section

15

as

part

of

Article

VII

was

to

eliminate midnight appointments from being made by anoutgoing Chief

Executive in the mold of the appointments dealt with in the leading case
of Aytona v. Castillo.[75] In fact, in Valenzuela, the Court so observed, stating
that:
xxx it appears that Section 15, Article VII is directed against
two types of appointments: (1) those made for buying votes and
(2) those made for partisan considerations. The first refers to
those appointments made within the two months preceding a
Presidential election and are similar to those which are
declared election offenses in the Omnibus Election Code, viz.:
xxx
The second type of appointments prohibited by Section 15,
Article VII consists of the so-called midnight appointments.
In Aytona v. Castillo, it was held that after the proclamation of
Diosdado Macapagal as duly elected President, President

Carlos P. Garcia, who was defeated in his bid for reelection,

became no more than a caretaker administrator whose duty
was to prepare for the orderly transfer of authority to the
incoming President. Said the Court:
The filling up of vacancies in important positions,
if few, and so spaced as to afford some assurance
of deliberate action and careful consideration of the
need for the appointment and appointee's
qualifications may undoubtedly be permitted. But
the issuance of 350 appointments in one night and
the planned induction of almost all of them in a few
hours before the inauguration of the new President
may, with some reason, be regarded by the latter as
an abuse of Presidential prerogatives, the steps
taken being apparently a mere partisan effort to fill
all vacant positions irrespective of fitness and other
conditions, and thereby to deprive the new
administration of an opportunity to make the
corresponding appointments.
As indicated, the Court recognized that there may well be
appointments to important positions which have to be made
even after the proclamation of the new President. Such
appointments, so long as they are few and so spaced as to
afford some assurance of deliberate action and careful
consideration of the need for the appointment and the
appointees qualifications, can be made by the outgoing
President. Accordingly, several appointments made by
President Garcia, which were shown to have been well
considered, were upheld.
Section 15, Article VII has a broader scope than
the Aytona ruling. It may not unreasonably be deemed to
contemplate not only midnight appointments those made
obviously for partisan reasons as shown by their number
and the time of their making but also appointments
presumed made for the purpose of influencing the
outcome of the Presidential election.
On the other hand, the exception in the same Section 15 of
Article VII allowing appointments to be made during the period
of the ban therein provided is much narrower than that
recognized in Aytona. The exception allows only the making
of temporary appointments
to executive positions
when
continued vacancies will prejudice public service or endanger
public safety. Obviously, the article greatly restricts the
appointing power of the President during the period of the ban.

Considering the respective reasons for the time frames for

filling vacancies in the courts and the restriction on the
President's power of appointment, it is this Courts view that, as
a general proposition, in case of conflict, the former should yield
to the latter. Surely, the prevention of vote-buying and similar
evils outweighs the need for avoiding delays in filling up of court
vacancies or the disposition of some cases. Temporary
vacancies can abide the period of the ban which, incidentally
and as earlier pointed out, comes to exist only once in every six
years.Moreover, those occurring in the lower courts can be filled
temporarily by designation. But prohibited appointments are
long-lasting and permanent in their effects. They may, as earlier
pointed out, in fact influence the results of elections and, for
that reason, their making is considered an election offense. [76]

Given the background and rationale for the prohibition in Section 15,
Article VII, we have no doubt that the Constitutional Commission confined
the prohibition to appointments made in the Executive Department. The
framers did not need to extend the prohibition to appointments in the
Judiciary, because their establishment of the JBC and their subjecting the
nomination and screening of candidates for judicial positions to the
unhurried and deliberate prior process of the JBC ensured that there would
no

longer

bemidnight appointments

to

the

Judiciary.

If

midnight

appointments in the mold of Aytona were made in haste and with

irregularities, or made by an outgoing Chief Executive in the last days of his
administration out of a desire to subvert the policies of the incoming
President or for partisanship,[77] the appointments to the Judiciary made
after the establishment of the JBC would not be suffering from such defects
because of the JBCs prior processing of candidates. Indeed, it is axiomatic
in statutory construction that the ascertainment of the purpose of the
enactment is a step in the process of ascertaining the intent or meaning of
the enactment, because the reason for the enactment must necessarily
shed considerable light on the law of the statute, i.e., the intent; hence, the
enactment should be construed with reference to its intended scope and
purpose, and the court should seek to carry out this purpose rather than to
defeat it.[78]
Also, the intervention of the JBC eliminates the danger that
appointments to the Judiciary can be made for the purpose of buying votes

in a coming presidential election, or of satisfying partisan considerations.

The experience from the time of the establishment of the JBC shows that
even candidates for judicial positions at any level backed by people
influential with the President could not always be assured of being
recommended for the consideration of the President, because they first had
to undergo the vetting of the JBC and pass muster there. Indeed, the
creation of the JBC was precisely intended to de-politicize the Judiciary by
doing away with the intervention of the Commission on Appointments. This
insulating process was absent from the Aytona midnight appointment.
Third. As earlier stated, the non-applicability of Section 15, Article VII
to appointments in the Judiciary was confirmed by then Senior Associate
Justice Regalado to the JBC itself when it met on March 9, 1998 to discuss
the question raised by some sectors about the constitutionality of xxx
appointments to the Court of Appeals in light of the forthcoming presidential
elections. He assured that on the basis of the (Constitutional) Commissions
records, the election ban had no application to appointments to the Court of
Appeals.[79] This confirmation was accepted by the JBC, which then
submitted to the President for consideration the nominations for the eight
vacancies in the Court of Appeals.[80]
The fault of Valenzuela was that it accorded no weight and due
consideration to the confirmation of Justice Regalado. Valenzuela was
weak, because it relied on interpretation to determine the intent of the
framers rather than on the deliberations of the Constitutional Commission.
Much of the unfounded doubt about the Presidents power to appoint during
the period of prohibition in Section 15, Article VII could have been dispelled
since its promulgation on November 9, 1998, had Valenzuela properly
acknowledged and relied on the confirmation of a distinguished member of
the Constitutional Commission like Justice Regalado.
Fourth. Of the 23 sections in Article VII, three (i.e., Section 14,
Section15, and Section 16) concern the appointing powers of the
President.

Section 14 speaks of the power of the succeeding President to

revoke appointments made by an Acting President, [81] and evidently refers
only to appointments in the Executive Department. It has no application to
appointments in the Judiciary, because temporary or acting appointments
can only undermine the independence of the Judiciary due to their being
revocable at will.[82] The letter and spirit of the Constitution safeguard that
independence. Also, there is no law in the books that authorizes
the revocation of appointments in the Judiciary. Prior to their mandatory
retirement or resignation, judges of the first and second level courts and the
Justices of the third level courts may only be removed for cause, but the
Members of the Supreme Court may be removed only by impeachment.
Section 16 covers only the presidential appointments that require
confirmation

by

the

Commission

on

Appointments.

Thereby,

the

Constitutional Commission restored the requirement of confirmation by the

Commission on Appointments after the requirement was removed from the
1973 Constitution. Yet, because of Section 9 of Article VIII, the restored
requirement did not include appointments to the Judiciary.[83]
Section 14, Section 15, and Section 16 are obviously of the same
character, in that they affect the power of the President to appoint. The fact
that Section 14 and Section 16 refer only to appointments within the
Executive Department renders conclusive that Section 15 also applies only
to the Executive Department. This conclusion is consistent with the rule
that every part of the statute must be interpreted with reference to the
context, i.e. that every part must be considered together with the other
parts, and kept subservient to the general intent of the whole enactment.
[84]

It is absurd to assume that the framers deliberately situated Section

15 between Section 14 and Section 16, if they intended Section 15 to

cover all kinds of presidential appointments. If that was their intention in
respect of appointments to the Judiciary, the framers, if only to be clear,
would have easily and surely inserted a similar prohibition in Article VIII,
most likely within Section 4 (1) thereof.
Fifth. To hold like the Court did in Valenzuela that Section 15 extends
to appointments to the Judiciary further undermines the intent of the

Constitution of ensuring the independence of the Judicial Department from

the Executive and Legislative Departments. Such a holding will tie the
Judiciary and the Supreme Court to the fortunes or misfortunes of political
leaders vying for the Presidency in a presidential election. Consequently,
the wisdom of having the new President, instead of the current incumbent
President, appoint the next Chief Justice is itself suspect, and cannot
ensure judicial independence, because the appointee can also become
beholden to the appointing authority. In contrast, the appointment by the
incumbent President does not run the same risk of compromising judicial
independence, precisely because her term will end by June 30, 2010.
Sixth. The argument has been raised to the effect that there will be no
need for the incumbent President to appoint during the prohibition period
the successor of Chief Justice Puno within the context of Section 4 (1),
Article VIII, because anyway there will still be about 45 days of the 90 days
mandated in Section 4(1), Article VIII remaining.
The argument is flawed, because it is focused only on the coming
vacancy occurring from Chief Justice Punos retirement by May 17, 2010. It
ignores the need to apply Section 4(1) to every situation of a vacancy in the
Supreme Court.
The argument also rests on the fallacious assumption that there will
still be time remaining in the 90-day period under Section 4(1), Article VIII.
The fallacy is easily demonstrable, as the OSG has shown in its comment.
Section 4 (3), Article VII requires the regular elections to be held on
the second Monday of May, letting the elections fall on May 8, at the
earliest, or May 14, at the latest. If the regular presidential elections are
held on May 8, the period of the prohibition is 115 days. If such elections
are held on May 14, the period of the prohibition is 109 days. Either period
of the prohibition is longer than the full mandatory 90-day period to fill the
vacancy in the Supreme Court. The result is that there are at least 19
occasions (i.e., the difference between the shortest possible period of the
ban of 109 days and the 90-day mandatory period for appointments) in
which the outgoing President would be in no position to comply with the

constitutional duty to fill up a vacancy in the Supreme Court. It is safe to

assume that the framers of the Constitution could not have intended such
an absurdity. In fact, in their deliberations on the mandatory period for the
appointment of Supreme Court Justices under Section 4 (1), Article VIII, the
framers neither discussed, nor mentioned, nor referred to the ban against
midnight appointments under Section 15, Article VII, or its effects on the 90day period, or vice versa. They did not need to, because they never
intended Section 15, Article VII to apply to a vacancy in the Supreme Court,
or in any of the lower courts.
Seventh. As a matter of fact, in an extreme case, we can even raise a
doubt

on

whether

JBC

list

is

necessary

at

all

for

the

President any President to appoint a Chief Justice if the appointee is to

come from the ranks of the sitting justices of the Supreme Court.
Sec. 9, Article VIII says:
xxx. The Members of the Supreme Court xxx shall be
appointed by the President from a list of at least three
nominees prepared by the Judicial and Bar Council for any
vacancy. Such appointments need no confirmation.
xxx

The provision clearly refers to an appointee coming into the Supreme Court
from the outside, that is, a non-member of the Court aspiring to become
one. It speaks of candidates for the Supreme Court, not of those who are
already members or sitting justices of the Court, all of whom have
previously been vetted by the JBC.
Can the President, therefore, appoint any of the incumbent Justices
of the Court as Chief Justice?
The question is not squarely before us at the moment, but it should
lend itself to a deeper analysis if and when circumstances permit. It should
be a good issue for the proposed Constitutional Convention to consider in
the light of Senate President Juan Ponce Enriles statement that the

President can appoint the Chief Justice from among the sitting justices of
the Court even without a JBC list.
II
The Judiciary Act of 1948
The posture has been taken that no urgency exists for the President to
appoint the successor of Chief Justice Puno, considering that the Judiciary
Act of 1948 can still address the situation of having the next President
appoint the successor.

Section 12 of the Judiciary Act of 1948 states:

Section 12. Vacancy in Office of Chief Justice. In case of a
vacancy in the office of Chief Justice of the Supreme Court or of
his inability to perform the duties and powers of his office, they
shall devolve upon the Associate Justice who is first in
precedence, until such disability is removed, or another Chief
Justice is appointed and duly qualified. This provision shall
apply to every Associate Justice who succeeds to the office of
Chief Justice.

The provision calls for an Acting Chief Justice in the event of a

vacancy in the office of the Chief Justice, or in the event that the Chief
Justice is unable to perform his duties and powers. In either of such
circumstances, the duties and powers of the office of the Chief Justice shall
devolve upon the Associate Justice who is first in precedence until a new
Chief Justice is appointed or until the disability is removed.
Notwithstanding that there is no pressing need to dwell on this peripheral
matter after the Court has hereby resolved the question of consequence,
we do not find it amiss to confront the matter now.
We cannot agree with the posture.
A review of Sections 4(1) and 9 of Article VIII shows that the Supreme
Court is composed of a Chief Justice and 14 Associate Justices, who all

shall be appointed by the President from a list of at least three nominees

prepared by the JBC for every vacancy, which appointments require no
confirmation by the Commission on Appointments. With reference to the
Chief Justice, he or she is appointed by the President as Chief Justice, and
the appointment is never in an acting capacity. The express reference to a
Chief

Justice

abhors

the

idea

that

the

framers

contemplated

an Acting Chief Justice to head the membership of the Supreme Court.

Otherwise, they would have simply written so in the Constitution.
Consequently, to rely on Section 12 of the Judiciary Act of 1948 in order to
forestall the imperative need to appoint the next Chief Justice soonest is to
defy the plain intent of the Constitution.
For sure, the framers intended the position of Chief Justice to be
permanent, not one to be occupied in an acting or temporary capacity. In
relation to the scheme of things under the present Constitution, Section 12
of the Judiciary Act of 1948 only responds to a rare situation in which the
new Chief Justice is not yet appointed, or in which the incumbent Chief
Justice is unable to perform the duties and powers of the office. It ought to
be remembered, however, that it was enacted because the Chief Justice
appointed under the 1935 Constitution was subject to the confirmation of
the Commission on Appointments, and the confirmation process might take
longer than expected.
The appointment of the next Chief Justice by the incumbent President
is preferable to having the Associate Justice who is first in precedence take
over. Under the Constitution, the heads of the Legislative and Executive
Departments are popularly elected, and whoever are elected and
proclaimed at once become the leaders of their respective Departments.
However, the lack of any appointed occupant of the office of Chief Justice
harms the independence of the Judiciary, because the Chief Justice is the
head of the entire Judiciary. The Chief Justice performs functions
absolutely significant to the life of the nation. With the entire Supreme Court
being the Presidential Electoral Tribunal, the Chief Justice is the Chairman
of the Tribunal. There being no obstacle to the appointment of the next
Chief Justice, aside from its being mandatory for the incumbent President
to make within the 90-day period from May 17, 2010, there is no

justification to insist that the successor of Chief Justice Puno be appointed

by the next President.
Historically, under the present Constitution, there has been no wide
gap between the retirement and the resignation of an incumbent Chief
Justice, on one hand, and the appointment to and assumption of office of
his successor, on the other hand. As summarized in the comment of the
OSG, the chronology of succession is as follows:
1.

When Chief Justice Claudio Teehankee retired on April 18,

1988, Chief Justice Pedro Yap was appointed on the same
day;

2.

When Chief Justice Yap retired on July 1, 1988, Chief

Justice Marcelo Fernan was appointed on the same day;

3.

When Chief Justice Fernan resigned on December 7,

1991, Chief Justice Andres Narvasa was appointed the
following day, December 8, 1991;

4.

When Chief Justice Narvasa retired on November 29,

1998, Chief Justice Hilario Davide, Jr. was sworn into office
the following early morning of November 30, 1998;

5.

When Chief Justice Davide retired on December 19, 2005,

Chief Justice Artemio Panganiban was appointed the next
day, December 20, 2005; and

6.

When Chief Justice Panganiban retired on December 6,

2006, Chief Justice Reynato S. Puno took his oath as Chief
Justice at midnight of December 6, 2006.[85]
III
Writ of mandamus does not lie against the JBC

May the JBC be compelled to submit the list of nominees to the President?
Mandamus shall issue when any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act that the law
specifically enjoins as a duty resulting from an office, trust, or station. [86] It is
proper when the act against which it is directed is one addressed to the

discretion of the tribunal or officer. Mandamus is not available to direct the

exercise of a judgment or discretion in a particular way.[87]
For mandamus to lie, the following requisites must be complied with: (a) the
plaintiff has a clear legal right to the act demanded; (b) it must be the duty
of the defendant to perform the act, because it is mandated by law; (c)
the defendant unlawfully neglects the performance of the duty enjoined by
law; (d) the act to be performed is ministerial, not discretionary; and (e)
there is no appeal or any other plain, speedy and adequate remedy in the
ordinary course of law.
Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a
list of at least three nominees to the President for every vacancy in the
Judiciary:
Section 8. xxx
(5) The Council shall have the principal function of
recommending appointees to the Judiciary. xxx
Section 9. The Members of the Supreme Court and judges
of lower courts shall be appointed by the President from a list
of at least three nominees prepared by the Judicial and Bar
Council for every vacancy. Such appointments need no
confirmation.
For the lower courts, the President shall issue the
appointments within ninety days from the submission of
the list.

However, Section 4(1) and Section 9, Article VIII, mandate the

President to fill the vacancy in the Supreme Court within 90 days from the
occurrence of the vacancy, and within 90 days from the submission of the
list, in the case of the lower courts. The 90-day period is directed at the
President, not at the JBC. Thus, the JBC should start the process of
selecting the candidates to fill the vacancy in the Supreme Court before the
occurrence of the vacancy.

Under the Constitution, it is mandatory for the JBC to submit to the

President the list of nominees to fill a vacancy in the Supreme Court in
order to enable the President to appoint one of them within the 90-day
period from the occurrence of the vacancy. The JBC has no discretion to
submit the list to the President after the vacancy occurs, because that
shortens the 90-day period allowed by the Constitution for the President to
make the appointment. For the JBC to do so will be unconscionable on its
part, considering that it will thereby effectively and illegally deprive the
President of the ample time granted under the Constitution to reflect on the
qualifications of the nominees named in the list of the JBC before making
the appointment.
The duty of the JBC to submit a list of nominees before the start of
the Presidents mandatory 90-day period to appoint is ministerial, but its
selection of the candidates whose names will be in the list to be submitted
to the President lies within the discretion of the JBC. The object of the
petitions for mandamus herein should only refer to the duty to submit to the
President the list of nominees for every vacancy in the Judiciary, because
in order to constitute unlawful neglect of duty, there must be an unjustified
delay in performing that duty.[88] For mandamus to lie against the JBC,
therefore, there should be an unexplained delay on its part in
recommending nominees to the Judiciary, that is, in submitting the list to
the President.
The distinction between a ministerial act and a discretionary one has
been delineated in the following manner:
The distinction between a ministerial and discretionary act is
well delineated. A purely ministerial act or duty is one which
an officer or tribunal performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of his own
judgment upon the propriety or impropriety of the act
done. If thelaw imposes a duty upon a public officer and
gives him the right to decide how or when the duty shall be
performed, such duty is discretionary and not ministerial.
The duty is ministerial only when the discharge of the same
requires neither the exercise of official discretion or
judgment.[89]

Accordingly, we find no sufficient grounds to grant the petitions

for mandamus and to issue a writ of mandamus against the JBC. The
actions for that purpose are premature, because it is clear that the JBC still
has until May 17, 2010, at the latest, within which to submit the list of
nominees to the President to fill the vacancy created by the compulsory
retirement of Chief Justice Puno.

IV
Writ of prohibition does not lie against the JBC

In light of the foregoing disquisitions, the conclusion is ineluctable that

only the President can appoint the Chief Justice. Hence, Sorianos petition
for prohibition in G.R. No. 191032, which proposes to prevent the JBC from
intervening in the process of nominating the successor of Chief Justice
Puno, lacks merit.
On the other hand, the petition for prohibition in G.R. No. 191342 is
similarly devoid of merit. The challenge mounted against the composition of
the JBC based on the allegedly unconstitutional allocation of a vote each to
the ex officio members from the Senate and the House of Representatives,
thereby prejudicing the chances of some candidates for nomination by
raising the minimum number of votes required in accordance with the rules
of the JBC, is not based on the petitioners actual interest, because they
have not alleged in their petition that they were nominated to the JBC to fill
some vacancies in the Judiciary. Thus, the petitioners lack locus standi on
that issue.

WHEREFORE, the Court:

1.

Dismisses the petitions for certiorari and mandamus in G.R. No.

191002 and G.R. No. 191149, and the petition for mandamus in G.R. No.
191057 for being premature;

2.

Dismisses the petitions for prohibition in G.R. No. 191032 and

G.R. No. 191342 for lack of merit; and

3.

Grants the petition in A.M. No. 10-2-5-SC and, accordingly,

directs the Judicial and Bar Council:

(a) To resume its proceedings for the nomination of candidates
to fill the vacancy to be created by the compulsory retirement
of Chief Justice Reynato S. Puno byMay 17, 2010;
(b) To prepare the short list of nominees for the position of Chief
Justice;
(c) To submit to the incumbent President the short list of
nominees for the position of Chief Justice on or before May
17, 2010; and
(d) To continue its proceedings for the nomination of candidates
to fill other vacancies in the Judiciary and submit to the
President the short list of nominees corresponding thereto in
accordance with this decision.
SO ORDERED.

[1]

Filed on February 9, 2010.

Begun on February 23, 2010.
[3]
Initiated on February 10, 2010.
[4]
Commenced on February 11, 2010.
[5]
Dated February 15, 2010.
[6]
Filed on March 8, 2010.
[7]
A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.
[8]
Petition in G.R. No. 191002, pp. 3-4.
[9]
Id., p. 5.
[10]
Petition in G.R. No. 191032, pp. 4-8.
[11]
Petition in G.R. No. 191057, pp. 1-2.
[12]
Id., p. 11.
[13]
Petition in G.R. No. 191149.
[14]
Petition in G.R. No. 191342.
[2]

[15]

http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf
http://jbc.judiciary.gov.ph/announcements/jbc_announce_2009/jan22%2
0%2710.pdf
[17]
Comment of the JBC, p. 3.
[18]
Id.
[19]
Id., pp. 4-5.
[20]
Id., p. 5.
[21]
Id.
[22]
Id., p. 6.
[23]
Petition in A.M. No. 10-2-5-SC, pp. 5-6.
[24]
Comment of the JBC, p. 6.
[25]
Id., p. 7; bold emphasis is in the original text.
[26]
Comment of the OSG, pp. 13-14.
[27]
Id., p. 14.
[28]
Id., p. 15.
[29]
Id., pp. 20-24.
[30]
Id., pp. 25-27.
[31]
Id., pp. 29-30.
[32]
Id.
[33]
Id., pp. 32-33.
[34]
Id., pp. 34-35.
[35]
Id.
[36]
Id., pp. 35-36. The OSG posits:
National interest compels the President to make such appointment
for it is particularly during this crucial period when national leaders
are seeking fresh mandates from the people that the Supreme
Court, more than at any other time, represents stability. Hence, a full
court is ideal to ensure not only due deliberation on and careful
consideration of issues but also expeditious disposition of cases.
Indeed, such function becomes especially significant in view of the
fact that this is the first time that the whole country will experience
automated elections.
[37]
Id., pp. 36-37. The OSG stresses:
The possible fallouts or serious aftermath of allowing a vacuum in
the position of the Chief Justice may be greater and riskier than the
consequences or repercussions of inaction. Needless to state, the
appointment of the Chief Justice of this Honorable Court (sic) is the
most important appointment vested by the 1987 Constitution
to (sic) the President.
[38]
Id., p. 37.
[39]
Id., p. 38.
[40]
Filed by Atty. Pitero M. Reig.
[41]
Blacks Law Dictionary, 941 (6th Ed. 1991).
[42]
G.R. No. 155001, May 5, 2003, 402 SCRA 612.
[43]
Citing Kilosbayan, Inc. v. Morato, G.R. No. 118910, July 17, 1995, 246
SCRA 540, 562-563, citing Baker v. Carr, 369 U.S. 186, 7 L. Ed. 633
(1962).
[44]
Citing Kilosbayan, Inc. v. Morato, supra; Bayan v. Zamora, G.R. No.
138570, October 10, 2000; 342 SCRA 449, 478.
[16]

[45]

65 Phil. 56.
G.R. No. 117, November 7, 1945 (Unreported).
[47]
G.R. No. 2947, January 11, 1959 (Unreported).
[48]
77 Phil. 1012 (1947).
[49]
110 Phil. 331 (1960).
[50]
84 Phil. 368 (1949)
[51]
E.g., Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002,
384 SCRA 152 (in which the Court ruled that the enforcement of the
constitutional right to information and the equitable diffusion of natural
resources are matters of transcendental importance which clothe the
petitioner with locus standi); Bagong Alyansang Makabayan v.
Zamora, G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10,
2000, 342 SCRA 449 (in which the Court held that given the transcendental
importance of the issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack of direct injury
to the parties seeking judicial review of the Visiting Forces Agreement); Lim
v. Executive Secretary, G.R. No. 151445, April 11, 2002, 380 SCRA 739 (in
which the Court, albeit conceding that the petitioners might not file suit in
their capacity as taxpayers without a showing that Balikatan 02-01 involved
the exercise of Congress taxing or spending powers, reiterated Bagong
Alyansang Makabayan v. Zamora, declaring that cases of transcendental
importance must be settled promptly and definitely and the standing
requirements may be relaxed); and Osmea v. Commission on
Elections, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199
SCRA 750 (in which the Court held that where serious constitutional
questions were involved, the transcendental importance to the public of the
cases demanded that they be settled promptly and definitely, brushing
aside technicalities of procedure).
[52]
L-No. 40004, January 31, 1975, 62 SCRA 275.
[53]
E.g., Taada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27 (in
which the Court held that it is sufficient that the petitioner is a citizen
interested in the execution of the law, because the question is one of public
duty and the enforcement of a public right, and the people are the real
party-in-interest); Legaspi v. Civil Service Commission, G.R. No. 72119,
May 29, 1987, 150 SCRA 530 (in which the Court declared that where an
assertion of a public right is involved, the requirement of personal interest is
satisfied by the mere fact that the petitioner is a citizen and is part of the
general public which possesses the right); Kapatiran ng mga Naglilingkod
sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No. 81311, June 30, 1988, 163
SCRA 371 (in which the Court disregarded objections to taxpayers lack of
personality to sue in determining the validity of the VAT Law); Albano v.
Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264 (in which the Court
pronounced that although no expenditure of public funds was involved in
the questioned contract, the petitioner was nonetheless clothed with the
legal personality under the disclosure provision of the Constitution to
question it, considering its important role in the economic development of
the country and the magnitude of the financial consideration involved,
indicating that public interest was definitely involved); and Association of
Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R.
[46]

No. 78742, July 14, 1989, 175 SCRA 343 (in which the Court ruled that it
had the discretion to waive the requirement of locus standi in determining
the validity of the implementation of the Comprehensive Agrarian Reform
Program, although the petitioners were not, strictly speaking, covered by
the definition of proper party).
[54]
David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA
160.
[55]
275 Ky 91, 120 SW2d 765 (1938).
[56]
19 Wend. 56 (1837).
[57]
232 NC 48, 59 SE2d 359 (1950).
[58]
Bold emphasis is in the original text.
[59]
Petition in G.R. No. 191032, p. 2.
[60]
Petition in G.R. No. 191057, pp. 3-4; citing the cases of PHILCONSA v.
Gimenez, 15 SCRA 479; PHILCONSA v. Mathay, 18 SCRA
300; PHILCONSA v. Enriquez, 235 SCRA 506; and Lambino v. COMELEC,
505 SCRA 160.
[61]
Petition in G.R. No. 191342, pp. 2-3.
[62]
See, for instance, Integrated Bar of the Philippines v. Zamora, G.R. No.
141284, August 15, 2000, 338 SCRA 81 (where the petitioner questioned
the validity of the deployment and utilization of the Marines to assist the
PNP in law enforcement, asserting that IBP was the official organization of
Filipino lawyers tasked with the bounden duty to uphold the rule of law and
the Constitution, but the Court held that the IBP had not shown that it was
so tasked: In this case, a reading of the petition shows that the IBP has
advanced constitutional issues which deserve the attention of this Court in
view of their seriousness, novelty and weight as precedents. Moreover,
because peace and order are under constant threat and lawless violence
occurs
in
increasing
tempo,
undoubtedly
aggravated
by
the Mindanao insurgency problem, the legal controversy raised in the
petition almost certainly will not go away. It will stare us in the face again. It,
therefore, behooves the Court to relax the rules on standing and to resolve
the issue now, rather than later, and went on to resolve the issues because
the petitioner advanced constitutional issues that deserved the attention of
the Court in view of their seriousness, novelty, and weight as precedents).
[63]
Supra, note 42, p. 645.
[64]
Id.
[65]
See Buckley v. Valeo, 424 U.S. 1, 113-118 (1976); Regional Rail
Reoganization Act Cases, 419 U.S. 102, 138-148 (1974).
[66]
Record of Proceedings and Debates of the Constitutional Commission,
Vol. V., p. 912, October 12, 1998.
[67]
Supra, note 6, p. 426-427, stating:
Considering the respective reasons for the time frames for filling
vacancies in the courts and the restriction on the Presidents power of
appointment, it is this Courts view that, as a general proposition, in
case of conflict, the former should yield to the latter. Surely, the
prevention of vote-buying and similar evils outweighs the need for
avoiding delays in filling up of court vacancies or the disposition of
some cases. Temporary vacancies can abide the period of the ban
which, incidentally and as earlier pointed out, comes to exist only once

in every six years. Moreover, those occurring in the lower courts can
be filled temporarily by designation. But prohibited appointments are
long-lasting and permanent in their effects. They may, as earlier
pointed out, in fact influence the results of elections and, for that
reason, their making is considered an election offense.
To the contention that may perhaps be asserted, that Sections 4 (1)
and 9 of Article VIII should prevail over Section 15 of Article VII,
because they may be considered later expressions of the people when
they adopted the Constitution, it suffices to point out that the
Constitution must be construed in its entirety as one, single,
instrument.
To be sure, instances may be conceived of the imperative need for
an appointment, during the period of the ban, not only in the executive
but also in the Supreme Court. This may be the case should the
membership of the court be so reduced that it will have no quorum or
should the voting on a particularly important question requiring
expeditious resolution be evenly divided. Such a case, however, is
covered by neither Section 15 of Article VII nor Section 4 (1) and 9 of
Article VIII.
[68]
Id., pp. 422-423.
[69]
Id., p. 423.
[70]
Record of Proceedings and Debates of the Constitutional Commission,
Vol. V., pp. 632-633.
[71]
Dizon v. Encarnacion, G.R. No. L-18615, December 24, 1963, 9 SCRA
714.
[72]
Crawford, Earl. T., The Construction of Statutes, Thomas Law Book
Company, St. Louis, Missouri, 262-264 (1940).
[73]
Garcia v. Social Security Commission Legal and Collection, G.R. No.
170735, December 17, 2007, 540 SCRA 456, 472; citing Escosura v. San
Miguel Brewery, Inc., 4 SCRA 285, (1962).
[74]
According to Arizona v. Rumsey, 467 U. S. 203, 212 (1984): Although
adherence to precedent is not rigidly required in constitutional cases, any
departure from the doctrine of stare decisis demands special justification.
The special justification for the reversal of Valenzuela lies in its intrinsic
unsoundness.
[75]
No. L-19313, January 19, 1962, 4 SCRA 1.
[76]
Supra, note 6, pp. 424-426; bold underscoring supplied for emphasis.
[77]
Aytona v. Castillo, supra, note 74, pp. 8-10 (N.B. - In the time material
to Aytona, there were judges of the Court of First Instance who were
appointed to districts that had no vacancies, because the incumbents had
not qualified for other districts to which they had been supposedly
transferred or promoted; at any rate, the appointments still required
confirmation by the Commission on Appointments).
[78]
Crawford, op. cit., supra, note 72, pp. 248-249.
[79]
Supra, note 6, p. 413.
[80]
Id.
[81]
Section 14. Appointments extended by an Acting President shall remain
effective, unless revoked by the elected President within ninety days from
his assumption or reassumption of office.

[82]

Cruz, I., Philippine Political Law, 253 (2002); also Rilloraza v. Vargas, 80
Phil. 297 (1948).
[83]
Record of Proceedings and Debates of the Constitutional Commission,
Vol. V., p. 908, which indicates that in his sponsorship speech delivered
on October 12, 1986 on the floor of the Constitutional Commission,
Commissioner Teofisto Guingona explained that [a]ppointments to the
judiciary shall not be subject to confirmation by the Commission on
Appointments.
[84]
Rodriguez, Statutory Construction, 171 (1999).
[85]
Comment of the OSG, p. 37.
[86]
Section 3, Rule 65, 1997 Rules of Civil Procedure.
[87]
JG Summit Holdings, Inc. v. Court of Appeals, G.R. No.
124293, November 20, 2000, 345 SCRA 143.
[88]
Nery v. Gamolo, A.M. No. P-01-1508, February 7, 2003, 397 SCRA 110,
citing Musni v. Morales, 315 SCRA 85, 86 (1999).
[89]
Espiridion v. Court of Appeals, G.R. No. 146933, June 8, 2006, 490
SCRA 273.
. No. 146933, June 8, 2006, 490 SCRA 273.

Republic of the Philippines

Supreme Court
Manila
SECOND DIVISION
NANCY L. TY, G.R. No. 188302
Petitioner,
Present:
CARPIO, J., Chairperson
BRION,
PEREZ,
- versus - SERENO, and
REYES, JJ.
Promulgated:
BANCO FILIPINO SAVINGS
and MORTGAGE BANK,
Respondent. June 27, 2012
x-----------------------------------------------------------------------------------------x

DECISION
BRION, J.:
We resolve the petition for review on certiorari,[1] filed by Nancy L. Ty
(petitioner), to challenge the March 31, 2009 decision [2] and the June 10,
2009 resolution[3] of the Court of Appeals (CA) in CA-G.R. SP No. 107104.
The CA decision dismissed the petitioners petition for certiorari for lack of
merit. The CA resolution denied the petitioners subsequent motion for
reconsideration.
THE FACTUAL ANTECEDENTS
Sometime in 1979, the Banco Filipino Savings and Mortgage Bank
(respondent) wanted to purchase real properties as new branch sites for its
expansion program. Since the General Banking Act [4] limits a banks real
estate holdings to no more than 50% of its capital assets, the respondents
Board of Directors decided to warehouse some of its existing properties
and branch sites to allow more flexibility in the opening of branches, and to
enable it to acquire new branch sites.[5]
The petitioner, a major stockholder and a director of the respondent,
persuaded two other major stockholders, Pedro Aguirre and his brother
Tomas Aguirre, to organize and incorporate Tala Realty Services
Corporation (Tala Realty) to hold and purchase real properties in trust for
the respondent. [6]
Subsequently, Remedios A. Dupasquier prodded her brother Tomas
to endorse to her his shares in Tala Realty and she registered them in the
name of her controlled corporation, Add International Services, Inc. [7] The
petitioner, Remedios, and Pedro controlled Tala Realty through their
respective nominees.[8]
In implementing their trust agreement, the respondent sold to Tala
Realty some of its properties. Tala Realty simultaneously leased to the

respondent the properties for 20 years, renewable for another 20 years at

the respondents option with a right of first refusal in the event Tala Realty
decides to sell them.[9] However, in August 1992, Tala Realty repudiated the
trust, claimed the titles for itself, and demanded payment of rentals,
deposits, and goodwill, with a threat to eject the respondent. [10]
Thus, from 1995 to 1996, the respondent filed 17 complaints against
Tala Realty, the petitioner, Pedro, Remedios, and their respective nominees
for reconveyance of different properties with 17 Regional Trial Courts
(RTCs) nationwide, including Civil Case No. 2506-MN before Branch 170 of
the RTC of Malabon (Malabon case), subject of the present case.[11]
The petitioner and her co-defendants moved to dismiss the Malabon
case for forum shopping and litis pendentia, citing the 16 other civil cases
filed in various courts[12]involving the same facts, issues, parties, and reliefs
pleaded in the respondents complaint.[13]
The Malabon RTC denied the motion to dismiss, [14] finding no
commonality in the 16 other civil cases since they involved different causes
of action. The Malabon RTC also denied [15] the subsequent motions for
reconsideration and for suspension of proceedings. [16]
After the petitioner and her co-defendants filed their respective
answers ad cautelam,[17] the petitioner filed a motion to hold proceedings in
abeyance,[18] citing the pendency with this Court of G.R. No. 127611[19] that
assailed the denial of their motion to dismiss Civil Case No. 4521 before
the Batangas City RTC (Branch 84), and also prayed for a writ of
prohibition to order the 17 RTC branches and the three CA divisions, where
the same cases were pending, to desist from further proceeding with the
trial of the cases.
The Malabon RTC granted to hold proceedings in abeyance. [20] When
the Malabon RTC denied[21] the respondents motion for reconsideration, the
respondent elevated its case to the CA via a Rule 65 petition for certiorari.
[22]

The

CA

initially

dismissed

the

petition,[23] but

on

motion

for

reconsideration, it modified its ruling, setting aside the RTCs order to hold

proceedings in abeyance for mootness, due to this Courts dismissal of G.R.

No. 127611 for late filing.[24]
Subsequently, the respondent moved for pre-trial. [25] Tala Realty
opposed the motion and filed again a motion to suspend proceedings,
[26]

citing the pendency with this Court of G.R. No. 132703, [27] a petition

for certiorari that assailed the CAs affirmance [28] of the dismissal order of
the Iloilo City RTC (Branch 28) in Civil Case No. 22493. [29]
The petitioner filed her separate opposition to the respondents motion
for pre-trial and a motion to hold proceedings in abeyance, stating that after
the dismissal of G.R. No. 127611, two other similar petitions have been
elevated to this Court: (1) G.R. No. 130184, [30] involving the CAs reversal of
the dismissal of Civil Case No. Q-95-24830 in the Quezon City RTC
(Branch 91), and (2) G.R. No. 132703.[31]
The Malabon RTC granted the motion, and again ordered to hold
proceedings in abeyance.[32] Six years later, the Malabon RTC directed the
parties counsels to inform it of the status of the pending cases. [33]
In her compliance,[34] the petitioner summarized this Courts rulings in
the consolidated cases of G.R. Nos. 130184 and 139166, [35] and in G.R.
No. 132703,[36] and reported on the other cases involving the same parties
decided by this Court, such as G.R. Nos. 129887, [37] 137980,[38] 132051,
[39]

137533,[40] 143263,[41] and 142672,[42]as well as the other related cases

decided by this Court, i.e., G.R. Nos. 144700,[43] 147997,[44] 167255,[45] and
144705.[46]
On the other hand, the respondent filed its compliance with motion to
revive proceedings,[47] citing the Courts consolidated decision in G.R. Nos.
130184 and 139166,[48]and the decisions in G.R. Nos. 144700,[49] 167255,
[50]

and

144705,[51] commonly holding

shopping, litis

pendentia and res

that

there

judicata among

existed
the

reconveyance cases pending in the other courts of justice.

no

forum

respondents

In her comment to the respondents motion to revive proceedings,

[52]

the petitioner argued that the proceedings should not be revived since all

the reconveyance cases are grounded on the same theory of implied trust
which this Court in G.R. No. 137533 [53] found void for being illegal as it was
a scheme to circumvent the 50% limitation on real estate holdings under
the General Banking Act.
Tala Realty, on the other hand, pointed out that it was the courts
prerogative to suspend or not its proceedings pending the resolution of
issues by another court, in order to avoid multiplicity of suits and prevent
vexatious litigations.[54]
THE RTC RULING
In its May 6, 2008 order, the RTC granted the respondents motion to
revive proceedings, noting that res judicata is not applicable since there are
independent causes of action for each of the properties sought to be
recovered.[55]
When the RTC denied[56] the petitioners motion for reconsideration,
[57]

she elevated her case to the CA via a Rule 65 petition for certiorari,

assailing the RTC orders.[58]

THE CA RULING
In its March 31, 2009 decision, the CA affirmed the RTCs orders. [59] It
noted that res judicata does not apply since the issue of validity or
enforceability of the trust agreement was raised in an ejectment case, not
an action involving title or ownership, citing the Courts pronouncement in
G.R. No. 144705[60] that G.R. No. 137533[61] does not put to rest all pending
litigations involving the issues of ownership between the parties since it
involved only an issue of de facto possession.
When the CA denied[62] her motion for reconsideration,[63] the
petitioner filed the present petition.

THE PETITION
The petitioner argues that the CA erred in refusing to apply G.R. No.
137533 under the principle of res judicata by conclusiveness of judgment
and stare decisis, and ignoring the November 26, 2007 minute resolution in
G.R. No. 177865[64] and the April 7, 2009 consolidated decision in G.R.
Nos. 130088, 131469, 155171, 155201, and 166608 [65] that reiterated the
Courts pronouncement in G.R. No. 137533.
THE CASE FOR THE RESPONDENT
The respondent submits that the petitioner is estopped from
amending the issues since she never raised the pendency of the
consolidated cases of G.R. Nos. 130088, 131469, 155171, 155201 and
166608 in her CA petition, which was based only on the Courts rulings in
G.R. No. 137533 and G.R. No. 177865.
THE ISSUE
The core issues boil down to whether the Courts ruling in G.R. No.
137533 applies as stare decisis to the present case.

OUR RULING
We grant the petition.
The case at bar presents the same issue that the Court already
resolved on April 7, 2009 in G.R. Nos. 130088, 131469, 155171, 155201
and 166608, wherein we applied the Courts November 22, 2002 decision
in G.R. No. 137533, one of several ejectment cases filed by Tala Realty
against the respondent arising from the same trust agreement in the
reconveyance case subject of the present petition, that the trust agreement
is void and cannot thus be enforced. We quoted therein the Courts ruling
in G.R. No. 137533, thus:

The Bank alleges that the sale and twenty-year lease of

the disputed property were part of a larger implied trust
"warehousing agreement." Concomitant with this Court's factual
finding that the 20-year contract governs the relations between
the parties, we find the Bank's allegation of circumstances
surrounding its execution worthy of credence; the Bank and
Tala entered into contracts of sale and lease back of the
disputed property and created an implied trust "warehousing
agreement" for the reconveyance of the property. In the eyes of
the law, however, this implied trust is inexistent and void for
being contrary to law.[66]
An implied trust could not have been formed between the
Bank and Tala as this Court has held that "where the purchase
is made in violation of an existing statute and in evasion of its
express provision, no trust can result in favor of the party who is
guilty of the fraud."[67]
x x x [T]he bank cannot use the defense of nor seek
enforcement of its alleged implied trust with Tala since its
purpose was contrary to law. As admitted by the Bank, it
"warehoused" its branch site holdings to Tala to enable it to
pursue its expansion program and purchase new branch sites
including its main branch in Makati, and at the same time avoid
the real property holdings limit under Sections 25(a) and 34 of
the General Banking Act which it had already reached x x x .
Clearly, the Bank was well aware of the limitations on its
real estate holdings under the General Banking Act and that its
"warehousing agreement" with Tala was a scheme to
circumvent the limitation. Thus, the Bank opted not to put the
agreement in writing and call a spade a spade, but instead
phrased its right to reconveyance of the subject property at any
time as a "first preference to buy" at the "same transfer price".
This agreement which the Bank claims to be an implied trust is
contrary to law. Thus, while we find the sale and lease of the
subject property genuine and binding upon the parties, we
cannot enforce the implied trust even assuming the parties
intended to create it. In the words of the Court in
the Ramos case, "the courts will not assist the payor in
achieving his improper purpose by enforcing a resultant trust for
him in accordance with the 'clean hands' doctrine." The Bank
cannot thus demand reconveyance of the property based on its
alleged implied trust relationship with Tala.[68] (italics supplied.)
The Bank and Tala are in pari delicto, thus, no
affirmative relief should be given to one against the other.

The Bank should not be allowed to dispute the sale of its lands
to Tala nor should Tala be allowed to further collect rent from
the Bank. The clean hands doctrine will not allow the creation or
the use of a juridical relation such as a trust to subvert, directly
or indirectly, the law. Neither the Bank nor Tala came to court
with clean hands; neither will obtain relief from the court as
the one who seeks equity and justice must come to court
with clean hands.[69] (emphases ours; citation omitted)
G.R. No. 137533, as reiterated in G.R. Nos. 130088, 131469,
155171, 155201 and 166608, is binding and applicable to the present case
following the salutary doctrine ofstare decisis et non quieta movere, which
means "to adhere to precedents, and not to unsettle things which are
established."[70] Under the doctrine, when this Court has once laid down a
principle of law as applicable to a certain state of facts, it will adhere to that
principle, and apply it to all future cases, where facts are substantially the
same; regardless of whether the parties and property are the same. [71] The
doctrine of stare decisis is based upon the legal principle or rule involved
and not upon the judgment, which results therefrom. In this particular
sense, stare decisis differs from res judicata, which is based upon the
judgment.[72]
The doctrine of stare decisis is one of policy grounded on the
necessity for securing certainty and stability of judicial decisions, thus:
Time and again, the Court has held that it is a very
desirable and necessary judicial practice that when a court has
laid down a principle of law as applicable to a certain state of
facts, it will adhere to that principle and apply it to all future
cases in which the facts are substantially the same. Stare
decisis et non quieta movere. Stand by the decisions and
disturb not what is settled.Stare decisis simply means that for
the sake of certainty, a conclusion reached in one case should
be applied to those that follow if the facts are substantially the
same, even though the parties may be different. It proceeds
from the first principle of justice that, absent any powerful
countervailing considerations, like cases ought to be decided
alike. Thus, where the same questions relating to the same
event have been put forward by the parties similarly situated as
in a previous case litigated and decided by a competent court,
the rule of stare decisis is a bar to any attempt to relitigate the
same [issue].[73] (italics supplied)

It bears stressing that the basic facts of the present case and those
of G.R. No. 137533 and G.R. Nos. 130088, 131469, 155171, 155201 and
166608 are the same. Clearly, in light of G.R. No. 137533 and G.R. Nos.
130088, 131469, 155171, 155201 and 166608, which the Court follows as
precedents, the present action for reconveyance cannot prosper. It is the
Court's duty to apply the previous rulings in G.R. No. 137533 and in G.R.
Nos. 130088, 131469, 155171, 155201 and 166608 to the present
case. Once a case has been decided one way, any other case
involving exactly the same point at issue, as in the present case,
should be decided in the same manner.[74]
WHEREFORE, the petition is GRANTED. The assailed decision and
resolution of the Court of Appeals in CA-G.R. SP No. 107104 are
hereby REVERSED and SET ASIDE. Civil Case No. 2506-MN before
Branch 170 of the Regional Trial Court of Malabon, Metro Manila is
hereby DISMISSED.
SO ORDERED.

[1]

Filed under Rule 45 of the 1997 Rules of Civil Procedure.

Penned by Associate Justice Martin S. Villarama, Jr. (now a member of
this Court), and concurred in by Associate Justices Rosalinda AsuncionVicente and Marlene Gonzales-Sison; rollo, pp. 48-67.
[3]
Id. at 69.
[4]
Republic Act No. 337, Sections 25 (a) and 34 (now Section 51 of the
General Banking Law of 2000).
[5]
Rollo, p. 661.
[6]
Id. at 662.
[7]
Id. at 662-663.
[8]
The petitioner exercised control through Pilar D. Ongking, then through
Cynthia E. Messina, and lastly through Dolly W. Lim. Remedios
exercised control through Add International Services, Inc. and Elizabeth
H. Palma. Pedro exercised control through Adelito Vergel de Dios, then
through Severino S. Banzon, later through Emigdio Tanjuatco, Sr., and
lastly through Rubencito M. del Mundo; id. at 663-664.
[9]
Id. at 666-669.
[10]
Id. at 669.
[11]
Id. at 659-679.
[2]

[12]

The 16 other civil cases and their respective RTC Branches:

Civil Case No. Q-95-24830 Branch 91, Quezon City
Civil Case No. 95-127 Branch 57, Lucena
Civil Case No. 22493 Branch 28, Iloilo
Civil Case No. 545-M-95 Branch 85, Malolos, Bulacan
Civil Case No. 4521 Branch 84, Batangas City
Civil Case No. U-6026 Branch 48, Urdaneta, Pangasinan
Civil Case No. 4992 Branch 66, La Union
Civil Case No. 2176-F Branch 86, Cabanatuan City
Civil Case No. 3036 Branch 13, Cotabato
Civil Case No. 95-0230 Branch 274, Paraaque
Civil Case No. 95-170-MK Branch 272, Marikina
Civil Case No. 95-75212 Branch 45, Manila
Civil Case No. 95-75213 Branch 46, Manila
Civil Case No. 95-75214 Branch 47, Manila
Civil Case No. 23,821-95 Branch 33, Davao
Civil Case No. 96-0036 Branch 255, Las Pias (Id. at 204-206).
[13]
Id. at 71-80 (the petitioner) and 733-758 (Tala Realty).
[14]
May 15, 1996 order; id. at 680-681.
[15]
October 10, 1996 order; id. at 688-690.
[16]
Id. at 682-687.
[17]
Id. at 81-99 (the petitioner) and 100-113 (Tala Realty).
[18]
Id. at 114-118.
[19]
Tala Realty, et al. v. Hon. Paterno Tac-An and Banco Filipino Savings
and Mortgage Bank.
[20]
April 3, 1997 resolution; id. at 119-120.
[21]
August 11, 1997 resolution; id. at 121.
[22]
Docketed as CA-G.R. SP No. 46327; id. at 122-135.
[23]
May 14, 1998 decision; id. at 136-141.
[24]
August 12, 1998 resolution; id. at 142-143.
[25]
Id. at 145-147.
[26]
Id. at 151-157.
[27]
Banco Filipino v. Court of Appeals.
[28]
December 18, 1996 decision and December 19, 1997 resolution in CAG.R. SP No. 41355; id. at 159-192, 193-194.
[29]
Id. at 238-268.
[30]
Tala Realty Services Corporation, et al. v. Banco Filipino Savings and
Mortgage Bank; id. at 202-237.
[31]
Id. at 195-201.
[32]
May 19, 1999 order; id. at 269-270.
[33]
February 14, 2007 order; id. at 271.
[34]
Id. at 272-297.
[35]
Nancy L. Ty v. Banco Filipino Savings and Mortgage Bank, November
19, 2001 minute resolution; id. at 355-361.
[36]
Banco Filipino v. Court of Appeals, 389 Phil. 644 (2000).
[37]
Tala Realty Services Corp. v. Banco Filipino, 382 Phil. 661 (2000).
[38]
Tala Realty Services Corp. v. Banco Filipino, 389 Phil. 455 (2000).
[39]
Tala Realty Services Corp. v. Banco Filipino, 412 Phil. 50 (2001).

[40]

Tala Realty Services Corp. v. Banco Filipino Savings and Mortgage

Bank, 441 Phil. 1 (2002).
[41]
Tala Realty Services Corp. v. Banco Fil. Savings & Mortgage Bank, 466
Phil. 164 (2004).
[42]
Banco Filipino Savings and Mortgage Bank v. Tala Realty Services
Corporation, September 27, 2006, 503 SCRA 442.
[43]
Tala Realty Services Corporation, et al. v. Banco Filipino Savings and
Mortgage Bank, November 22, 2000 minute resolution; id. at 353.
[44]
Tala Realty Services Corp. v. Banco Fil. Savings & Mortgage Bank, 430
Phil. 89 (2002).
[45]
Tala Realty Services Corporation v. Banco Filipino Savings and
Mortgage Bank, June 8, 2005 minute resolution; id. at 379.
[46]
Ty v. Banco Filipino Savings & Mortgage Bank, 511 Phil. 510 (2005).
[47]
Rollo, pp. 298-324.
[48]
Supra notes 30 and 35.
[49]
Supra note 43.
[50]
Supra note 45.
[51]
Supra note 46.
[52]
Rollo, pp. 414-427.
[53]
Supra note 40.
[54]
Rollo, pp. 428-441.
[55]
Id. at 450-453.
[56]
October 28, 2008 order; id. at 481-483.
[57]
Id. at 454-461.
[58]
Id. at 484-517.
[59]
Supra note 2.
[60]
June 5, 2006 minute resolution; id. at 396-399.
[61]
Supra note 40.
[62]
Supra note 3.
[63]
Rollo, pp. 560-569.
[64]
Banco Filipino Savings and Mortgage Bank v. Tala Realty Services
Corporation, et al.; id. at 442.
[65]
Tala Realty Services Corporation v. Court of Appeals, April 7, 2009, 584
SCRA 63.
[66]
Tala Realty Services Corp. v. Banco Filipino Savings and Mortgage
Bank, supra note 40, p. 38.
[67]
Id. at 40.
[68]
Id. at 41-42.
[69]
Id. at 45.
[70]
Confederation of Sugar Producers Association, Inc. v. Department of
Agrarian Reform (DAR), G.R. No. 169514, March 30, 2007, 519 SCRA
582, 618, citing Black's Law Dictionary, Fifth Edition.
[71]
Ibid., citing Horne v. Moody, 146 S.W.2d 505 (1940).
[72]
Id. at 618-619.
[73]
Id. at 619.
[74]
Manila Electric Company, Inc. v. Lualhati, G.R. Nos. 166769 and
166818, December 6, 2006, 510 SCRA 455, 471; and Commissioner of
Internal Revenue v. Trustworthy Pawnshop, Inc., 522 Phil. 497, 506
(2006).

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 187451

August 29, 2012

JESUS VIRTUCIO, represented by ABDON VIRTUCIO, Petitioner,

vs.
JOSE ALEGARBES, Respondent.
PERALTA, J., Acting Chairperson,*
VILLARAMA, JR.,**
PEREZ,***
DECISION
MENDOZA, J.:
This petition for review on certiorari under Rule 45 seeks to reverse and set
aside the February 25, 2009 Decision1 of the Court of Appeals (CA), in CAG.R. CV No. 72613, reversing and setting aside the February 19, 2001
Decision2 of the Regional Trial Court, Branch 1, Isabela, Basi Ian (RTC), in
Civil Case No. 685-627, an action for "Recovery of Possession and
Ownership with Preliminary Injunction."
The Facts
Respondent Jose Alegarbes (Alegarbes) filed Homestead Application No.
V-33203 (E-V-49150) for a 24-hectare tract of unsurveyed land situated in
Baas, Lantawan, Basilan in 1949. His application was approved on
January 23, 1952.3 In 1955, however, the land was subdivided into three (3)
lots Lot Nos. 138,139 and 140, Pls-19 - as a consequence of a public
land subdivision. Lot 139 was allocated to Ulpiano Custodio (Custodio),
who filed Homestead Application No. 18-4493 (E-18-2958). Lot 140 was
allocated to petitioner Jesus Virtucio (Virtucio), who filed Homestead
Application No. 18-4421 (E-18-2924).4
Alegarbes opposed the homestead applications filed by Custodio and
Virtucio, claiming that his approved application covered the whole area,
including Lot Nos. 139 and 140.5
On October 30, 1961, the Director of Lands rendered a decision denying
Alegarbes' protest and amending the latter's application to exclude Lots
139 and 140. Only Lot 138 was given due course. The applications of
Custodio and Virtucio for Lots 139 and 140, respectively, were likewise
given due course.6

Alegarbes then appealed to the Secretary of Agriculture and Natural

Resources, who dismissed his appeal on July 28, 1967. He then sought
relief from the Office of the President (OP), which, however, affirmed the
dismissal order of the Secretary of Agriculture and Natural Resources in a
decision, dated October 25, 1974. Alegarbes moved for a reconsideration,
but the motion was subsequently denied.7
On May 11, 1989, an order of execution8 was issued by the Lands
Management Bureau of the Department of Environment and Natural
Resources to enforce the decision of the OP. It ordered Alegarbes and all
those acting in his behalf to vacate the subject lot, but he refused.
On September 26, 1997, Virtucio then filed a complaint 9 for "Recovery of
Possession and Ownership with Preliminary Injunction" before the RTC.
In his Answer,10 Alegarbes claimed that the decision of the Bureau of Lands
was void ab initio considering that the Acting Director of Lands acted
without jurisdiction and in violation of the provisions of the Public Land Act.
Alegarbes argued that the said decision conferred no rights and imposed
no duties and left the parties in the same position as they were before its
issuance. He further alleged that the patent issued in favor of Virtucio was
procured through fraud and deceit, thus, void ab initio.
Alegarbes further argued, by way of special and/or affirmative defenses,
that the approval of his homestead application on January 23, 1952 by the
Bureau of Lands had already attained finality and could not be reversed,
modified or set aside. His possession of Lot Nos. 138, 139 and 140 had
been open, continuous, peaceful and uninterrupted in the concept of an
owner for more than 30 years and had acquired such lots by acquisitive
prescription.
In his Amended and Supplemental Answer,11 Alegarbes also averred that
his now deceased brother, Alejandro Alegarbes, and the latter's family
helped him develop Lot 140 in 1955. Alejandro and his family, as well as
Alegarbes' wife and children, had been permanently occupying the said lot
and, introducing permanent improvements thereon since 1960.
The RTC Ruling
The RTC rendered its decision on February 19, 2001, favoring Virtucio. The
decretal portion of which reads:
WHEREFORE, upon the merit of this case, this court finds for the plaintiff
and against the defendant by:
1. Ordering the defendant and all those acting in his behalf to vacate Lot
No. 140, Pls-19, located at Lower Baas, Lantawan, Basilan and surrender
the possession and ownership thereof to plaintiff;

2. Ordering the defendant to pay the plaintiff the amount of Fifteen

Thousand Pesos (P 15,000.00) as attorney's fees and another Ten
Thousand Pesos (P 10,000.00) as expenses for litigation; and
3. To pay the cost of the suit in the amount of Five Hundred Pesos
(500.00).
SO ORDERED.12
Not in conformity, Alegarbes appealed his case before the CA.
The CA Ruling
On February 25, 2009, the CA promulgated its decision declaring
Alegarbes as the owner of Lot No. 140, Pls-19, thereby reversing and
setting aside the decision of the RTC. The CA ruled that Alegarbes became
ipso jure owner of Lot 140 and, therefore, entitled to retain possession of it.
Consequently, the awards of attorney's fees, litigation expenses and costs
of suit were deleted.
In so ruling, the CA explained that even if the decision to approve Virtucio's
homestead application over Lot 140 had become final, Alegarbes could still
acquire the said lot by acquisitive prescription. The decisions on the issues
of the approval of Virtucio's homestead application and its validity were
impertinent as Alegarbes had earlier put in issue the matter of ownership of
Lot 140 which he claimed by virtue of adverse possession.
The CA also found reversible error on the part of the RTC in disregarding
the evidence before it and relying entirely upon the decisions of the
administrative bodies, none of which touched upon the issue of Alegarbes'
open, continuous and exclusive possession of over thirty (30) years of an
alienable land. The CA held that the Director of Lands, the Secretary of
Agriculture and Natural Resources and the OP did not determine whether
Alegarbes' possession of the subject property had ipso jure segregated Lot
140 from the mass of public land and, thus, was beyond their jurisdiction.
Aggrieved, Virtucio filed this petition.
ISSUES
Virtucio assigned the following errors in seeking the reversal of the assailed
decision of the CA, to wit:
1. The Court of Appeals erred in setting aside the judgment of the trial
court, which awarded the lot in question to the respondent by virtue
of acquisitive prescription and ordered herein petitioner to surrender
the ownership and possession of the same to them. 13

2. The Court of Appeals gravely erred in disregarding the decision in

CA-G.R. CV-26286 for Recovery of Possession and Ownership,
Custodio vs. Alegarbes which contains same factual circumstances
as in this case and ruled against JOSE ALEGARBES. 14
3. The Court of Appeals erred in deleting the award of attorney's fees
to the petitioner.15
The lone issue in this case is whether or not Alegarbes acquired ownership
over the subject property by acquisitive prescription.
Ruling of the Court
The petition must fail.
Indeed, it is fundamental that questions of fact are not reviewable in
petitions for review on certiorari under Rule 45 of the Rules of Court. Only
questions of law distinctly set forth shall be raised in the petition. 16
Here, the main issue is the alleged acquisition of ownership by Alegarbes
through acquisitive prescription and the character and length of possession
of a party over a parcel of land subject of controversy is a factual
issue.17 The Court, however, is not precluded from reviewing facts when the
case falls within the recognized exceptions, to wit:
(a) When the findings are grounded entirely on speculation, surmises, or
conjectures;
(b) When the inference made is manifestly mistaken, absurd, or impossible;
(c) When there is grave abuse of discretion;
(d) When the judgment is based on a misapprehension of facts;
(e) When the findings of facts are conflicting;
(f) When in making its findings the CA went beyond the issues of the case,
or its findings are contrary to the admissions of both the appellant and the
appellee;
(g) When the CAs findings are contrary to those by the trial court;
(h) When the findings are conclusions without citation of specific evidence
on which they are based;
(i) When the facts set forth in the petition as well as in the petitioners main
and reply briefs are not disputed by the respondent;
(j) When the findings of fact are premised on the supposed absence of
evidence and contradicted by the evidence on record; or

(k) When the CA manifestly overlooked certain relevant facts not disputed
by the parties, which, if properly considered, would justify a different
conclusion.18 [Emphasis supplied]
In the case at bench, the findings and conclusions of the CA are apparently
contrary to those of the RTC, hence, the need to review the facts in order to
arrive at the proper conclusion.
On Acquisitive Prescription
Virtucio insists that the period of acquisitive prescription was interrupted on
October 30, 1961 (or in 1954 when Alegarbes filed the protest) when the
Director of Lands rendered a decision giving due course to his homestead
application and that of Ulpiano Custodio. Virtucio further claims that since
1954, several extrajudicial demands were also made upon Alegarbes
demanding that he vacate said lot. Those demands constitute the
"extrajudicial demand" contemplated in Article 1155, thus, tolling the period
of acquisitive prescription.19
Article 1106 of the New Civil Code, in relation to its Article 712, provides
that prescription is a mode of acquiring ownership through the lapse of time
in the manner and under the conditions laid down by law. Under the same
law, it states that acquisitive prescription may either be ordinary or
extraordinary.20 Ordinary acquisitive prescription requires possession of
things in good faith and with just title for a period of ten years, 21 while
extraordinary acquisitive prescription requires uninterrupted adverse
possession of thirty years, without need of title or of good faith. 22
There are two kinds of prescription provided in the Civil Code. One is
acquisitive, that is, the acquisition of a right by the lapse of time as
expounded in par. 1, Article 1106. Other names for acquisitive prescription
are adverse possession and usucapcion. The other kind is extinctive
prescription whereby rights and actions are lost by the lapse of time as
defined in Article 1106 and par. 2, Article 1139. Another name for extinctive
prescription is litigation of action.23 These two kinds of prescription should
not be interchanged.
Article 1155 of the New Civil Code refers to the interruption of prescription
of actions. Interruption of acquisitive prescription, on the other hand, is
found in Articles 1120-1125 of the same Code. Thus, Virtucios reliance on
Article 1155 for purposes of tolling the period of acquisitive prescription is
misplaced. The only kinds of interruption that effectively toll the period of
acquisitive prescription are natural and civil interruption. 24
Civil interruption takes place with the service of judicial summons to the
possessor.25 When no action is filed, then there is no occasion to issue a
judicial summons against the respondents. The period of acquisitive
prescription continues to run.

In this case, Virtucio claims that the protest filed by Alegarbes against his
homestead application interrupted the thirty (30)-year period of acquisitive
prescription. The law, as well as jurisprudence, however, dictates that only
a judicial summons can effectively toll the said period.
In the case of Heirs of Marcelina Azardon-Crisologo v. Raon, 26 the Court
ruled that a mere Notice of Adverse Claim did not constitute an effective
interruption of possession. In the case of Heirs of Bienvenido and Araceli
Tanyag v. Gabriel,27 which also cited the Raon Case, the Court stated that
the acts of declaring again the property for tax purposes and obtaining a
Torrens certificate of title in one's name cannot defeat another's right of
ownership acquired through acquisitive prescription. 28
In the same vein, a protest filed before an administrative agency and even
the decision resulting from it cannot effectively toll the running of the period
of acquisitive prescription. In such an instance, no civil interruption can take
place. Only in cases filed before the courts may judicial summons be
issued and, thus, interrupt possession. Records show that it was only in
1997 when Virtucio filed a case before the RTC. The CA was, therefore,
correct in ruling that Alegarbesbecame ipso jure owner of Lot 140 entitling
him to retain possession of it because he was in open, continuous and
exclusive possession for over thirty (30) years of alienable public
land.Virtucio emphasizes that the CA erred in disregarding the decisions of
the administrative agencies which amended Alegarbes' homestead
application excluding Lot 140 and gave due course to his own application
for the said lot, which decisions were affirmed by the RTC.
Well-settled is the rule that factual findings of the lower courts are entitled
to great weight and respect on appeal and, in fact, are accorded finality
when supported by substantial evidence on the record. 29 It appears,
however, that the conclusion made by the RTC was not substantially
supported. Even the RTC itself noted in its decision:
The approval of a Homestead Application merely authorizes the applicant
to take possession of the land so that he could comply with the
requirements prescribed by law before a final patent could be issued in his
favor what divests the government of title to the land is the issuance of a
patent and its subsequent registration with the Register of Deeds. 30
A perusal of the records would reveal that there was no issuance of any
patent in favor of either parties. This simply means that the land subject of
the controversy remains to be in the name of the State. Hence, neither
Virtucio nor Alegarbes can claim ownership. There was, therefore, no
substantial and legal basis for the RTC to declare that Virtucio was entitled
to possession and ownership of Lot 140.
It can be argued that the lower court had the decisions of the administrative
agencies, which ultimately attained finality, as legal bases in ruling that
Virtucio had the right of possession and ownership. In fact, the Department

of Environment and Natural Resources (DENR) even issued the Order of

Execution31 on May 11, 1989 ordering Alegarbes to vacate Lot 140 and
place Virtucio in peaceful possession of it. The CA, however, was correct in
finding that:
But appellant had earlier put in issue the matter of ownership of Lot 140
which he claims by virtue of adverse possession. On this issue, the cited
decisions are impertinent. Even if the decision to approve appellee's
homestead application over Lot 140 had become final, appellant could still
acquire the said lot by acquisitive prescription. 32
In the case of Heirs of Gamos v. Heirs of Frando,33 the Court ruled that the
mere application for a patent, coupled with the fact of exclusive, open,
continuous and notorious possession for the required period, is sufficient to
vest in the applicant the grant applied for.34 It likewise cited the cases of
Susi v. Razon35 and Pineda v. CA,36 where the Court ruled that the
possession of a parcel of agricultural land of the public domain for the
prescribed period of 30 years ipso jure converts the lot into private
property.37
In this case, Alegarbes had applied for homestead patent as early as 1949.
He had been in exclusive, open, continuous and notorious possession of
Lot 140 for at least 30 years. By the time the DENR issued its order of
execution in 1989, Alegarbes had Lot 140 in his possession for more than
30 years. Even more so when Virtucio filed the complaint before the RTC in
1997, Alegarbes was already in possession of the subject property for fortyeight (48) years.
The CA correctly observed that the RTC erred in disregarding the evidence
before it and relying entirely upon the decisions of the Director of Lands,
the Secretary of Agriculture and Natural Resources and the OP, which
never touched the issue of whether Alegarbes open, continuous and
exclusive possession of over thirty (30) years of alienable land had ipso
jure segregated Lot 140 from the mass of public land and beyond the
jurisdiction of these agencies.38
When the CA ruled that the RTC was correct in relying on the
abovementioned decisions, it merely recognized the primary jurisdiction of
these administrative agencies. It was of the view that the RTC was not
correct in the other aspects of the case. Thus, it declared Alegarbes as
owner ipso jure of Lot 140 and entitled to retain possession of it. There is
no reason for the Court to disturb these findings of the CA as they were
supported by substantial evidence, hence, are conclusive and binding upon
this Court.39
On the CA Decision involving a similar case
Virtucio insists that the CA gravely erred in disregarding its decision
in Custodio v. Alegarbes, CA-G.R. CV 26286, for Recovery of Possession

and Ownership, which involved the same factual circumstances and ruled
against Alegarbes.
It must be noted that the subject property in the said case was Lot 139
allocated to Custodio and that Virtucio was not a party to that case. The
latter cannot enjoy whatever benefits said favorable judgment may have
had just because it involved similar factual circumstances. The Court also
found from the records that the period of acquisitive prescription in that
case was effectively interrupted by Custodio's filing of a complaint, which is
wanting in this case.
Moreover, it is settled that a decision of the CA does not establish judicial
precedent.40 "The principle of stare decisis enjoins adherence by lower
courts to doctrinal rules established by this Court in its final decisions. It is
based on the principle that once a question of law has been examined and
decided, it should be deemed settled and closed to further argument. " 41
The Court agrees with the position of Alegarbes that by Virtucio's insistence
that it was erroneous for the CA to disregard its earlier decision in CA-G.R.
CV 26286, he, in effect, calls upon this Court to adhere to that decision by
invoking the stare decisis principle, which is not legally possible because
only final decisions of this Court are considered precedents. 42
In view of the foregoing, the Court need not dwell on the complaint of
Virtucio with regard to the deletion of the award of attorney's fees in his
favor. It is ludicrous for the CA to order Alegarbes to pay attorney's fees, as
a measure of damages, and costs, after finding him to have acquired
ownership over the property by acquisitive prescription.
WHEREFORE, the petition is DENIED.
SO ORDERED.

Footnotes
*

Per Special Order No. 1290 dated August 28, 2012.

**

Designated acting member, in lieu of Associate Justice Presbitero J.

Velasco, Jr., per Special Order No. 1291 dated August 28,2012.
***

Designated additional member, per Special Order No. 1299 dated

August 28,2012. 1

Penned by Associate Justice Romulo V. Borja, with Associate

Justice Mario V. Lopez and Associate Justice Elihu A. Ybanez,
concurring, rolla, pp. 22-34 and 93-105. 2
2

Penned by Judge Felisberto C. Gonzales, CA rollo, pp. 258-271.

Records, pp. 9 and 262.

Id. at 9.

Rollo, pp. 11-12.

Id. at 12.

Id.

Records, pp. 16-17.

Id. at 1-15.

10

Id. at 42-52.

11

Id. at 67-69.

12

CA rollo, pp. 270-271.

13

Rollo, p. 14.

14

Id. at 16.

15

Id. at 17.

16

Sec. 1, Rule 45 of the Rules of Court.

17

Heirs of Bienvenido and Araceli Tanyag v. Gabriel, G.R. No.

175763, April 11, 2012.
18

Abalos and Sps. Salazar v. Heirs of Vicente Torio, G.R. No.

175444, December 14, 2011, 662 SCRA 450, 456-457, citing
Spouses Andrada v. Pilhino Sales Corporation, G.R. No. 156448,
February 23, 2011, 644 SCRA 1, 10.
19

Rollo, p. 152.

20

Art. 1117, New Civil Code.

21

Id., in relation to Art. 1134 of the New Civil Code.

22

Art. 1137, New Civil Code.

23

De Morales v. CFI, 186 Phil. 596, 598 (1980).

24

Art. 1120, New Civil Code.

25

Heirs of Bienvenido and Araceli Tanyag v. Gabriel, supra note 17,

citing Heirs of Marcelina Azardon-Crisologo v. Raon, G.R. No.
171068, September 5, 2007, 532 SCRA 391, 406-407.
26

G.R. No. 171068, September 5, 2007, 532 SCRA 391.

27

Supra note 17, citing Heirs of Marcelina Azardon-Crisologo v.

Raon, G.R. No. 171068, September 5, 2007, 532 SCRA 391, 406407.
28

Id.

29

Spouses Patricio and Myrna Bernales v. Heirs of Julian Sambaan,

G..R. No. 163271, January 15, 2010, 610 SCRA 90, 104-105, citing
Xentrex Motors, Inc. v. Court of Appeals, 353 Phil. 258, 262 (1998).
30

CA rollo, p. 268.

31

Records, pp. 16-17.

32

Rollo, p. 29.

33

488 Phil. 140 (2004).

34

Id. at 153.

35

48 Phil. 424 (1925).

36

262 Phil. 658, 665 (1990).

37

Heirs of Gamos v. Heirs of Frando, Supra note 33 at 152.

38

Rollo, p. 33.

39

Lynvil Fishing Enterprises, Inc. v. Ariola, G.R. No. 181974, February

1, 2012, 664 SCRA 679.
40

Nepomuceno v. City of Surigao, G.R. No. 146091, July 28, 2008,

560 SCRA 41, 47.
41

Land Bank v. Hon. Pagayatan, GR. No. 177190, Fc-biuary 23,

2011, 644 SCRA 133, 142-143, citing Ting v. Velez-Ting. G.R. No.
166562, March 31. 2009, 582 SCRA 694, 704.
42

Rollo, p. 132.