the soriano petition (gr 191032): de castro vs. jbc, gr 191002, 17 march 2010

7/31/2019 The Soriano Petition (GR 191032): De Castro vs. JBC, GR 191002, 17 March 2010

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The Legal Standing of the Petitioner& The Legal Propriety of this Petition

1. Petitioner is filing this suit as a citizen of the Republic of the Philippines

who believes that there is a compelling interest to intervene, on the basis

of the Constitution, in the current controversy arising from the designation

of the next Chief Justice because this issue has far-reaching implication in

the pursuit of judicial independence, in particular, and carries

transcendental significance in the life of this nation, in general.

2. Petitioner is also suing as a taxpayer inasmuch as the continuing

proceedings of the respondent Judicial and Bar Council would involve

the unnecessary, if not illegal, disbursement (i. e. for publication and

meetings and the like) of public funds and/or taxpayers' money, because

as will be explained and argued hereunder the process is not in

accordance with the Constitution,

3. Petitioner is also suing as a member of the Philippine Bar and as an

officer of the court with a solemn duty to participate in the development

of the legal system by initiating or supporting efforts in law reform and in

the improvement of the administration of justice1

4. Respondent Judicial and Bar Council is being impleaded in its official

capacity being the constitutional body created by the Constitution to

prepare the list of at least three nominees, from which the President of the

Philippines shall appoint the Members of the Supreme Court in case of

1Canon 4, Code of Professional Responsibility


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vacancy2. For the service of legal processes and notices, respondent's

office is at 2nd Floor, Centennial Bldg., Supreme Court, Padre Faura,

Manila, Philippines 1000

5. Petitioner is compelled to initiate this petition against this respondent

before this Honorable Court by invoking its concurrent and original

jurisdiction over petitions for prohibition under the Constitution3 because

the Judicial and Bar Council is a constitutional body under it4.

Brief Statement of Facts

1. The facts of this case is matter that this Honorable Court has judicial

notice and full knowledge of.

2. But essentially for purposes of this petition, the incumbent Chief Justice is

set to retire on 17 May 2010 and consequently respondent, in its en banc

meeting of 18 January 2010, unanimously agreed to start the process of

filling up the position of Chief Justice x x x5

3. Some individuals and Members of this Honorable Court actually

manifested and expressed interest to the respondent to be included in the

list of nominees to be submitted to the respondent.

2Sec. 8 and 9, Art. VIII, Constitution

3Sec. 5 (1), Art. VIII, Constitution

4Sec. 8 (4) and (5), Art. VIII, ibid.

5http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf [accessed: 8 February 2010]


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4. On 11 January 2010, petitioner official wrote the Honorable Chief

Justice, copy furnished the Members of this Honorable Court expressing his

modest legal opinion that the Chief Justice should be chosen by the

Supreme Court en banc in accordance with the Constitution and not by

appointment of the President (present or future) from a list to be submitted

by the respondent. In reply, petitioner received a letter dated 19 January

2010 stating that petitioner's suggestion was referred-endorsed to the

respondent and the letter was duly NOTED by the JBC during its en banc

meeting on 18 January 2010. Original copies of these letters are hereto

attached in the original copy of this petition as Annexes A and B .

5. With the official announcement of the respondent that it has

unanimously agreed in an en banc meeting held on 18 January 2010 to

start the search, nomination and selection process to fill up the post to be

vacated by the current Chief Justice on 17 May 2010, it necessarily follows

that respondent has already set aside petitioner's submission. Hence,

petitioner is constrained to file this action invoking this Honorable Court's

power of judicial review.

Constitutional Ground and Argumentsin Support of this Petition

1. The power to appoint the Chief Justice is not vested with the President

of the Philippines but with the Supreme Count en banc under the

Constitution.


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a) The power of appointment of the President under the Constitution is

expressed in this wise:

The President shall nominate and, with the consent of theCommission on Appointments, appoint the heads of the

executive department, ambassadors, other public ministers and

consuls, or officers of the armed forces from the rank of colonel

or naval captain, and other officers whose appointments are

vested in him in this Constitution. He shall also appoint all other

officers of the Government whose appointment are not

otherwise provided for by law, and those whom he may be

authorized by law to appoint. The Congress may, by law, vest

the appointment of other officers lower in rank in the President

alone, in the courts, or in the heads of departments, agencies,commissions, or boards.

The President shall have the power to make appointments

during the recess of the Congress, whether voluntary or

involuntary, but such appointments shall be effective only until

after disapproval by the Commission on appointments or until

the next adjournment of the Congress.6 (underscoring and

emphasis supplied)

b) The Constitution also provides:

Sec. 5. The Supreme Court shall have the following powers:

x x x x x x

(6) Appoint all officials and employees of the judiciary in

accordance with the Civil Service Law.7 (underscoring and

emphasis supplied)

And compared to the Constitution of the United States where judicial

practices in this jurisdiction are patterned, such provision does not exist in

the American fundamental law, and is therefore unique in ours.

6Sec. 16, Art. VII, Constitution

7Art. VIII, ibid


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c) An official is someone who holds or invested with an authority or

office and there appears to be no doubt that the position of Chief Justice

is considered or deemed as an official of the judiciary, its highest official in

fact. The Chief Justice is not the Supreme Court, and so are the individual

members of the High Court. The Chief Justice is plainly an official of the

judiciary in charge of its day-to-day functions being the head of the third

branch of government. The Chief Justice alone does not exercise judicial

power.

d) Under the above-quoted constitutional provision, the President may

exercise the appointing power only to offices (1) whose appointment is

vested to him by law or the Constitution, and (2) whose appointment is

not otherwise provided for by law. But curiously in the case of officers or

'officials' of the judiciary, which includes the post of Chief Justice, the

power to appoint is expressly vested by the Constitution as above-quoted

to the Supreme Court, thereby removing that power from the ambit of

presidential authority.

e) In fact, this interpretation is consistent and in accord with the

constitutional mandate of the respondent Judicial and Bar Council which

says:

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.


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For the lower courts, the President shall issue the appointments

within ninety days from the submission of the list.8

Clearly, the appointing authority of the President is limited to the Members

or the Associate Justices of this Honorable Supreme Court, and not to the

position of Chief Justice. Consequently, the only time respondent may

intervene in the search, selection and nomination process of the Chief

Justice is when the individual or person being sought for the position by

the Supreme Court is not yet a member or associate justice of the High

Court. But respondent's proceedings consistent with the afore-quoted

constitutional provision is only for the purpose of making such person or

individual a member of this Honorable Court, in order to qualify him or her

to be appointed as a Chief Justice by this Honorable Court.

f) Thus, the respondent Judicial and Bar Council committed grave abuse

of discretion amounting to lack of or in excess of its jurisdiction when it

resolved unanimously on 18 January 2010 to open the search, nomination,

and selection process for the position of Chief Justice upon the retirement

of the Honorable Reynato S. Puno on 17 May 2010 for the purpose of

submitting a list of nominees for appointment by the President.

Respondent is bereft of such authority under the Constitution.

g) Under the Rules of Court, (W)hen the proceedings of any tribunal,

corporation, board, officer or person, whether exercising judicial, quasi-

judicial or ministerial functions, are without or in excess of its or his

8Sec. 9, Art. VIII, Constitution


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Honorable Court is able to preserve the integrity and independence of

the judiciary, and more importantly would free or perhaps insulate itself

from the disceptation of politics.

c) In favorably resolving this petition in accordance with the Constitution,

the Honorable Court would also spare itself from any or all legal,

constitutional and political controversies, that is whether or not the

appointment should be done by the incumbent President or the President

-Elect after the May 2010 elections - which only serve to undermine

judicial independence and integrity.

Arguments in Support of Prayer for Injunctive Relief

1. Petitioner re-pleads by reference the foregoing allegations as integral

part of this arguments.

2. Pending determination of this petition by this Honorable Court, it is

imperative that a temporary restraining order, a writ of preliminary

injunction and/or a stay order be issued against respondent Judicial and

Bar Council enjoining it from further proceedings with the search, selection

and nomination process for the position of Chief Justice upon the

retirement of the Honorable Reynato S. Puno on 17 May 2010.

3. Petitioner is entitled to the relief demanded, and the whole or part of

such relief consists in restraining and prohibiting public respondent from


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proceeding with the search, selection and nomination process for the

position of Chief Justice because its official action contravenes the

Constitution as earlier explained.

4. The fact that respondent unanimously approved on 18 January 2010 to

commence deliberation or proceedings on the nomination process might

render this petition moot and academic especially if a list of nominees is

submitted in due course to the incumbent President.

5. Verily, respondent's proceeding is a violation of the Constitution

because it arrogated upon itself a power exclusively vested to this

Honorable Court, and therefore should be enjoined immediately.

Closing Statement

In filing this petition, petitioner is reminded of the thoughts of Thomas

Jefferson when he said centuries ago that:

"The judiciary... is a body which, if rendered independent and kept

strictly to their own department, merits great confidence for their

learning and integrity."10

"The dignity and stability of government in all its branches, the moralsof the people and every blessing of society depend so much upon

an upright and skillful administration of justice, that the judicial power

ought to be distinct from both the legislative and executive and

independent upon both, that so it may be a check upon both, as

both should be checks upon that."11

I beg this Honorable Court to assert its judicial supremacy and re-define

our constitutional history in the appointment of its Chief Justice.

10Addressed to James Madison, 1789. ME 7:309

11Addressed to George Wythe, 1776. Papers 1:410


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PRAYER

ACCORDINGLY, it is most respectfully prayed of this Honorable Court, that

the soriano petition (gr 191032): de castro vs. jbc, gr 191002, 17 march 2010

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