APPOINTMENT OF THE NEXT CHIEF JUSTICE BY PRESIDENT ARROYO

I. RELEVANT PERIODS

Section 15, Article VII of the Constitution imposes a ban on midnight

appointments taking effect 2 months before the next Presidential elections until the
end of the term of the President:

“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.”

Thus, the ban on midnight appointments will start from 10 March until 30
June 2010.

Under Section 261 (g) (2) of the Omnibus Election Code, it is an election
offense punishable by imprisonment of not less than 1 year but not more than 6
years, without the benefit of probation, including the penalty of disqualification to
hold public office and deprivation of the right of suffrage, for “[a]ny government
official who promotes, or gives any increase of salary or remuneration or privilege to
any government official or employee, including those in government owned and
controlled corporations” during the period of 45 days before a regular election. The
period covered by this election ban begins on 27 March 2010.

CJ Puno will be retiring on 17 May 2010 upon reaching the age of 70. In either
case, Puno’s retirement shall fall within the constitutional ban on midnight
appointments or the election ban under the Omnibus Election Code.

It will also take place 1 week after the 10 May 2010 national elections with the
newly elected President assuming office on 01 July 2010.

Section 4 (1), Article VIII of the Constitution provides that any vacancy in the
Supreme Court shall be filled within 90 days from the occurrence thereof. The 90th
day from the occurrence of the vacancy falls on 15 August 2010. Thus, the newly
elected President still has 45 days from 01 July until 15 August 2010 to appoint the
new Chief Justice of the Supreme Court.

II. DEFENSOR PROPOSAL

Anticipating said vacancy and the commencement of the ban on midnight

appointments, Rep. Matias Defensor, Jr., a member of the Judicial and Bar Council
(JBC) representing the House of Representatives, in a letter dated 22 December 2009
addressed to CJ Puno, as JBC Chairman, moved for the JBC “to commence the
procedure in nominating applicants [for the position of Chief Justice] and to

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immediately submit forthwith to the President the list of at least three (3) nominees”
for the position. In gist, the reasons advanced by Rep. Defensor are as follows:

• The move “avoids a vacancy of even a single day in the position” and gives
“the President ample time before May 17, 2010 to scrutinize and critically
consider [the] three nominees for this highest of judicial positions.”

• From the time of the retirement of CJ Claudio Teehankee to the appointment

of incumbent CJ Puno, “there never was a vacuum, not for a day, in the
position of Chief Justice.”

• “[E]very effort must be exerted that at all times there is a functioning

Supreme Court composed of a Chief Justice and fourteen Associate Justices.”

• “[T]he Chief Justice is required to personally certify every decision that is

rendered by the [Supreme] Court.”

• “There is but a single Chief Justice, without whom the Supreme Court cannot
exist x x x. The filling up of the vacancy in said office either by substitution,
or by temporary appointment, is not sanctioned by the Constitution.”

The obvious intent of the move is for the JBC to submit the list of nominees to
President Gloria Macapagal-Arroyo and for her to issue an appointment to take
effect when the vacancy occurs on 18 May 2010.

Subsequently, Senator Juan Ponce Enrile and Senator Miriam Defensor-

Santiago expressed their views that the President may appoint the next Chief Justice
even in the absence of a nomination from the JBC.

ISSUES

1. Can President Arroyo appoint a Chief Justice during the ban on midnight
appointments under Section 15, Article VII of the Constitution?

2. Can President Arroyo appoint a new Chief Justice prior to the effectivity of
the ban on midnight appointments on 11 March 2010 with the appointment to
take effect on 18 May 2010 when the position of Chief Justice becomes
vacant?

3. Will there be a leadership vacuum in the Supreme Court as a result of the

retirement of Chief Justice Puno during the effectivity of the constitutional
ban against midnight appointments?

4. Historically, what is the established practice in filling vacancies in the post of

the Chief Justice in the absence of an appointment?

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5. Can President appoint the next Chief Justice even in the absence of a
nomination from the JBC?

6. What are the consequences of President Arroyo appointing the next Chief
Justice?

DISCUSSION

1. The President may not appoint the next the Chief Justice
during the Constitutional ban on midnight appointments.

Section 4 (1), Article VIII of the Constitution provides:

“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.” (Emphasis
supplied)

Section 15, Article VII of the Constitution prohibits the President from
appointing any person, other than temporary appointments, two (2) months before
the next Presidential elections until the end of the term of the President:

“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.” (Emphasis
supplied)

The ban on midnight appointments under Section 15, Article VII was
sponsored by former Senator Lorenzo M. Sumulong of the Committee on the
Executive of the 1986 Constitutional Commission.1

The rationale of providing safeguards against midnight appointments was

provided for in the case of Aytona v. Castillo, 4 SCRA 1 (1962), wherein the
Supreme Court nullified 350 midnight appointments made by then outgoing
President Carlos Garcia on the eve of the expiration of his term in office and the
transition to then incoming President Diosdado Macapagal:

“Under the circumstances above described, what with the

separation of powers, this Court resolves that it must decline to

1 Records of the Constitutional Commission No. 42 on 29 July 1986

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 disregard the Presidential Administrative Order No. 2, cancelling such
‘midnight’ or ‘last-minute’ appointments.

Of course, the Court is aware of many precedents to the effect

that once an appointment has been issued, it cannot be reconsidered,
specially where the appointee has qualified. But none of them refer to
mass ad interim appointments (three hundred and fifty), issued in the
last hours of an outgoing Chief Executive, in a setting similar to that
outlined herein. On the other hand, the authorities admit of
exceptional circumstances justify revocation 3 and if any
circumstances justify revocation, those described herein should fit the
exception.

Incidentally, it should be stated that the underlying reason for

denying the power to revoke after the appointee has qualified is the
latter's equitable rights. Yet it is doubtful if such equity might be
successfully set up in the present situation, considering the rush
conditional appointments, hurried maneuvers and other happenings
detracting from that degree of good faith, morality and propriety
which form the basic foundation of claims to equitable relief. The
appointees, it might be argued, wittingly or unwittingly cooperated
with the stratagem to beat the deadline, whatever the resultant
consequences to the dignity and efficiency of the public service.
Needless to say, there are instances of the public service. Needless to
say, there are instances wherein not only strict legality, but also
fairness, justice and righteousness should be taken into account.”
(Emphasis supplied)

Hence, the obligation to fill in the vacancies of the Supreme Court within 90
days is not an excuse to violate the constitutional prohibition of appointments under
the constitutional ban against midnight appointments.

Another historical antecedent happened under the 1987 Constitution during

the final days of the Ramos Administration. In the case of 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, 298 SCRA 408 (1998) involving appointments to the judiciary, the Supreme
Court held that the purpose of the ban against midnight appointments is to address
its consequences which is presumed to be intended to influence the outcome of the
next Presidential Election:

“Section 15, Article VII restricts the appointing power of the

President during the period of the ban. It 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

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 similar to those declared election offenses in Section 261 (a) and (g) of
the Omnibus Election Code. The second type of appointment
consists of the so-called ’midnight’ appointments — those presumed
made for the purpose of influencing the outcome of the Presidential
election. The exception in the same section allows only the making of
temporary appointments to executive positions when continued
vacancies will prejudice public service or endanger public safety.”
(Emphasis supplied)

In this case, Supreme Court nullified the appointments of 2 trial court judges
to the courts of Bago City and Cabanatuan City because they were made during a
time when the ban against midnight appointments was in effect. The Supreme Court
explained that the evil sought to be prevented by the ban on midnight
appointments far outweighs the interest to fill vacancies in the judiciary within
the periods contemplated in the Constitution:

“The Court's view is that during the period stated in Section

15, Article VII of the Constitution — ’(t)wo months immediately
before the next presidential elections and up to the end of his term’ —
the President is neither required to make appointments to the courts
nor allowed to do so; and that Sections 4(1) and 9 of Article VIII
simply mean that the President is required to fill vacancies in the
courts within the time frames provided therein unless prohibited by
Section 15 of Article VII.

Considering the respective reasons for the time frames for

filling vacancies in the courts and the restriction on the President's
power of appointment, it is this Court's view that, as a general
proposition, in case of conflict, the former should yield to the latter.
Surely, the prevention of vote-buying and similar evils outweighs
the need for avoiding delays in filling up of court vacancies or the
disposition of some cases. Temporary vacancies can abide the period
of the ban which, incidentally and as earlier pointed out, comes to
exist only once in every six years. Moreover, those occurring in the
lower courts can be filled temporarily by designation. But
prohibited appointments are long-lasting and permanent in their
effects. They may, as earlier pointed out, in fact influence the results
of elections and, for that reason, their making is considered an
election offense.”2

Senator Santiago has argued that the ban on midnight appointments refers
only to appointments made by the President to the executive department. As can be
seen in the cited case, the ban on midnight appointments was applied by the

2
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, supra; emphasis and underscoring supplied.

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Supreme Court against midnight appointments made by President Ramos to the
judiciary. Moreover, the express exception provided under Section 15, Article VII of
the Constitution treats of temporary emergency appointments to the executive
department “when continued vacancies therein will prejudice public service or
endanger public safety.” Thus, the ban against midnight appointments applies
outside of this exception.

Consequently, the express language of Section 15, Article VII of the

Constitution contradicts Senator Santiago’s position that the President may appoint
the next Chief Justice if exigent circumstances warrant the issuance of the
appointment. However, despite the clear language of the constitutional provision,
the Supreme Court in the cited case mentioned in an obiter dictum that appointments
are possible especially for the Supreme Court in extreme cases in instances when no
quorum can be achieved in the absence of an appointment or should the voting on a
particularly important question requiring expeditious resolution be evenly divided:

“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 Sections 4
(1) and 9 of Article VIII.”3

Nevertheless, such is clearly not the case in the event that CJ Puno retires
from office on 17 May 2010. There shall be a quorum in the Supreme Court and
crucial matters can still be expeditiously resolved. Between 01 July to 15 August
2010, the new President that will assume office on 01 July 2010 still has ample time to
appoint the Chief Justice and one Associate Justice of the Supreme Court (who will
assume the position vacated by CJ Puno) and completing the membership of the
Supreme Court.

In the past, a similar attempt to compel the JBC to submit their nominations
to a vacancy in the Supreme Court failed. In a letter dated 04 May 1998, then
President Ramos pressed the JBC to submit their nominations for the vacancy left by
the retirement of then Supreme Court Associate Justice Ricardo Francisco, in order
to comply with the Constitutional period for making appointments in the judiciary
within ninety (90) days upon the occurrence of the vacancy. But Chief Justice Andres
Narvasa, then serving concurrently as Chairman of the JBC, responded that JBC will
only convene after the elections, as the Constitution prohibited the President from
making appointments 2 months before the elections.

3 Ibid.

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 2. President Arroyo cannot issue any appointment in
anticipation of a vacancy. Such appointment is void ab initio4
and has no force and effect.

It is basic that for an appointment to be valid, the position must be vacant.

Jurisprudence is replete with expressions of this basic rule. In Costin vs. Quimbo,
120 SCRA 159 (1983), the Supreme Court ruled that it is elementary in the law of
public officers that no person, no matter how qualified and eligible for a certain
position, may be appointed to an office which is not vacant:

“xxx When respondent Verra was appointed chief of police on

January 14, 1960, Lajer had just been dismissed from office with
several other members of the police force. The validity of Verra's
appointment, therefore, hinges on the legality of Lajer's removal. It is
elementary in the law of public officers that no person, no matter
how qualified and eligible he is for a certain position may be
appointed to an office which is not vacant. There can be no
appointment to a non-vacant position. The incumbent must first be
legally removed or his appointment validly terminated.”

Any appointment to a position that is not vacant is null and void ab initio. As
held in Morata vs. Court of Appeals, 11 SCRA 42 (1964), that

“xxx This notwithstanding, we can not agree with the same

insofar as it restores Manrique Raymundo to the position of chief of
police of Bulan, Sorsogon, and declared him lawfully entitled to hold
said position, for he was appointed thereto on November 25, 1958,
when the position was not as yet vacant, Manuel Morata being then
the incumbent chief of police, although suspended from office.
Since the office was not vacant, the appointment thereto made in
favor of Raymundo was null and void ab initio. Although the
Commissioner of Civil Service declared Morata resigned as of
November 25, 1957, the decision to this effect was not rendered until
either January 22, 1959, the date appearing in the decision, or April 4,
1960, when it was promulgated. Such decision could not have cured
the defect of said appointment of Raymundo, for being void ab initio
and, hence, non-existent from a legal viewpoint, it could not be
revived by a subsequent act.xxx”

Since such an appointment is void ab initio, it is absolutely without any force

and effect. Consequently, an appointment to an office which is not vacant gives no
right whatsoever to the appointee. In Gayatao vs. Civil Service Commission, 210
SCRA 183 (1992), the Supreme Court held:

4 Invalid from its inception.

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 “x x x Petitioner cannot claim any right to the contested
position. No vacancy having legally been created by the illegal
dismissal, no appointment may be validly made to that position and
the new appointee has no right whatsoever to that office. She should
be returned to where she came from or be given another equivalent
item. xxx The present Constitution does not provide for automatic
vacancies; removals ‘not for cause’ contemplated in Section 16, Article
XVIII thereof must be those resulting from reorganization and which,
to repeat, must pass the test of good faith. “

This rule holds true even in cases where the appointing officer has a valid
and subsisting power to appoint when no constitutional or statutory ban is in effect.5
It is therefore clear that any appointment made by President Arroyo of the next
Chief Justice made prior to the occurrence of the vacancy on 17 May 2010 is void ab
initio and has no force and effect. Such void ab initio appointment gives and creates
no right whatsoever to and for the appointee. An appointment simply cannot be
made to a non-vacant position or in anticipation of vacancy thereof.

Consequently, contrary to the representations of Rep. Defensor, a midnight

appointment actually places the country in a perilous situation during a most critical
period of transition in leadership of our country. If the Defensor proposal is carried
out, the Supreme Court will be under a Chief Justice who assumed office on the
basis of a void appointment, who has no right whatsoever to the office, and whose
independence will be under a great cloud of suspicion. Thus, the situation will be
much worse than the scenario presented by Rep. Defensor in support of his move.

3. The Judiciary Act of 1948 provides for rules of succession in the

event of the retirement of the Chief Justice without a successor
being appointed. Hence, by operation of law, there will be no
leadership vacuum in the Supreme Court when CJ Puno while the
constitutional ban against midnight appointments remains in effect.

Section 12 of Republic Act No. 296 or the Judiciary Act of 1948:

“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.”6

5 Jocom vs. Regalado, 201 SCRA 183 (1991) and Garces vs. Court of Appeals, 259 SCRA 99 (1996).
In Ronquillo vs. Castillo, 9 SCRA 617 (1963), the Supreme Court, citing Aytona vs. Castillo, 4
SCRA 1 (1962), ruled that there can be no appointment to a position that has not yet been vacated.
6 Sec. 12, Republic Act 296 (Judiciary Act of 1948).

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 This provision has not been repealed by Batas Pambansa Bilang 129 or the
Judiciary Reorganization Act which only applies to the Court of Appeals and other
lower courts and not to the Supreme Court.7

However, Senator Enrile argues that this provision has been impliedly
repealed by the 1987 Constitution. This contention has no basis.

Section 3, Article XVIII of the 1987 Constitution provides that “all existing
laws not inconsistent with this Constitution shall remain operative until
amended, repealed or revoked.” There is absolutely no inconsistency between
the provisions of the 1987 Constitution and the rule of succession under Section
12 of the Judiciary Act of 1948.

In fact, the framers of the 1987 Constitutional Commission were clear in

their deliberations that in the event of the inability of the Chief Justice to act in
any capacity, for any reason, including his retirement, the most senior Associate
Justice shall assume the position as Acting Chief Justice of the Supreme Court.

“MR. DE LOS REYES: On line 20 of page 2, after the

phrase ‘preside but shall not vote’ — because we amended that
yesterday — I propose to add the following sentence: IN CASE OF
DEATH, DISABILITY, REMOVAL OR RESIGNATION OF THE
CHIEF JUSTICE THE MOST SENIOR ASSOCIATE JUSTICE SHALL
PRESIDE AND IF FOR THE SAME REASONS HE COULD NOT
PRESIDE, THE NEXT SENIOR ASSOCIATE JUSTICE SHALL
PRESIDE. THE SAME RULE SHALL APPLY IF THE NEXT
SUCCEEDING SENIOR ASSOCIATE JUSTICE COULD NOT
PRESIDE FOR THE SAME REASONS.

Mr. Presiding Officer, it is possible that during an

impeachment process something happens to the Chief Justice in which
case the President can frustrate his impeachment by not appointing a
Chief Justice. That is the concept.

MR. ROMULO: May we just suggest? Normally, if the

Chief Justice cannot preside, an Acting Chief Justice is appointed. May
we not refer to the Acting Chief Justice instead?

MR. DE LOS REYES: Yes, but suppose the President does not
appoint any Acting Chief Justice because he is the one under
impeachment? So, we must make an automatic rule in the
Constitution itself.

7Section 2 of BP 129 provides: “Sec. 2. The reorganization herein provided shall include the Court
of Appeals, the Court of First Instance, the Circuit Criminal Courts, the Juvenile and Domestic
Relations Courts, the Courts of Agrarian Relations, the City Courts, the Municipal Courts, and
the Municipal Circuit Courts.”

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 MR. ROMULO: May we ask Commissioner Concepcion if
the appointment of an Acting Chief Justice is automatic or done by the
President?

THE PRESIDING OFFICER (Mr. Treñas): Commissioner

Concepcion is recognized.

MR. CONCEPCION: There is no need under the law.

Whenever the Chief Justice is absent or the position is vacant, the
Senior Associate Justice will perform his duties.

MR. DE LOS REYES: With the explanation of Commissioner

Concepcion, I withdraw my amendment.” (R.C.C. NO. 41, 28 July
1986; emphasis supplied)

Thus, the 1986 Constitutional Commission was aware that by operation of

law, under Section 2 of the Judiciary Act of 1948, the most Senior Justice of the
Supreme Court automatically becomes the Acting Chief Justice in the absence or
retirement of the Chief Justice before an appointment is made by the President to fill
the vacancy.

In fact, the same rule of succession was followed under the 1987 Constitution
when, in 1992, at the end of the term of Chief Justice Marcelo B. Fernan, Associate
Justice Andres R. Narvasa assumed the position as Acting Chief Justice prior to his
official appointment as Chief Justice of the Supreme Court.

The rule of succession in the Supreme Court which follows the seniority of
the members thereof in filing up a vacancy in the office of Chief Justice were
acknowledged and even used by analogy in the case of the vacancy of the Chairman
of the Commission on Elections, in the case of Brillantes v. Yorac, 192 SCRA 358
(1990):

“In his Comment, the Solicitor General argues that no such

designation is necessary in the case of the Supreme Court because
the temporary succession cited is provided for in Section 12 of the
Judiciary Act of 1948. A similar rule is found in Section 5 of BP 129 for
the Court of Appeals. There is no such arrangement, however, in the
case of the Commission on Elections.”

4. The rule of succession under Section 12 of the Judiciary Act of

1948 has been consistently observed and forms part of the
history and tradition of the Supreme Court.

The history of the Supreme Court has shown that this rule of succession has
been repeatedly observed and has become part of its tradition. The following table

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shows the historical antecedents of the most senior Justice of the Supreme Court
acting as the Chief Justice in the absence of the Chief Justice:

Period Chief Justice Acting Chief Justice

01 April 1970
to Cayetano Arellano Victorino Mapa
01 July 1970
21 December 1941
to Ramon Avanceña Jose Laurel
24 December 1941
06 June 1973
to Roberto Concepcion Querube Makalintal
31 October 1973
(for a brief period while the
Querube Makalintal Fred Ruiz Castro
Chief Justice was on leave)
19 April 1979
to Fred Ruiz Castro Enrique Fernando
02 July 1979
(for a brief period while the
Manuel Moran Ricardo Paras
Chief Justice was on leave)
(for a brief period while the
Ricardo Paras Cesar Bengzon
Chief Justice was on leave)
01 May 1985
to Enrique Fernando Claudio Teehankee
15 May 1985
07 March 1986
to Felix Makasiar Claudio Teehankee
02 April 1986
(for a brief period while the
Marcelo Fernan Andres Narvasa
Chief Justice was on leave)
(for a brief period while the
Hilario Davide Josue Bellosillo
Chief Justice was on leave)
(for a brief period while the
Hilario Davide Reynato Puno
Chief Justice was on leave)
(for a brief period while the
Reynato Puno Leonardo Quisumbing
Chief Justice was on leave)

Following the rule of succession, on numerous occasions when the Chief

Justice went on temporary leave of absence, an Associate Justice of the Supreme
Court also took over his responsibilities as Acting Chief Justice. To cite some
examples:

• When then Chief Justice Artemio Panganiban went on leave for a lecture
tour from 10 to 27 May 2006 in the United States and Europe, then Associate
Justice Reynato Puno, being the most senior Justice, served as Acting Chief
Justice and even Acting Ex-Oficio Member of the JBC.

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 • When Chief Justice Puno went to Barcelona, Spain from 21 to 25 October
2007 for an International Conference of jurists, the most senior among the
Associate Justices, Justice Leonardo Quisumbing served as Acting Chief
Justice during his absence.

Contrary to the representations of Rep. Defensor, in such instances, the Supreme

Court continued to function. Even at times when the Chief Justice cannot perform
his functions, decisions were rendered by the Supreme Court and certified by the
Acting Chief Justice prior to their promulgation.

Moreover, contrary to Rep. Defensor’s representations, there have been

numerous instances in the past when the membership of the Supreme Court fell
below a full complement of 15. Yet, the Supreme Court continued functioning. In
fact, the Constitution allows the Supreme Court to sit en banc or in divisions. In fact,
in some cases, decisions are rendered even if several members of the Supreme Court
declined to take part in the deliberations.

Clearly, the fears foisted by Rep. Defensor that the vacancy in the position of
Chief Justice will present a vacuum, especially in light of the upcoming elections and
the Chief Justice’s pivotal role as Chairman of the Presidential Electoral Tribunal are
unfounded. The law, rules and the historical antecedents cited above betray his
misrepresentations.

5. The President can only appoint the next Chief Justice from a list of
nominees to be submitted by the JBC.

Senator Enrile contends that the Section 9, Article VIII of the Constitution
with respect to the submission of a list of three nominees by the JBC is limited only
to vacancies for the position of Associate Justices and not for vacancies for the
position of Chief Justice:

“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.”

Senator Enrile argues that when appointing a Chief Justice, the President
need not await the list of nominees from the JBC and may choose from among the
incumbent Associate Justices who have already gone through the JBC nomination
process. This argument has no basis.

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 The Constitution is clear that the Supreme Court is composed on “a Chief
Justice and fourteen Associate Justices.”8 Thus, the Chief Justice is also a member of
the Supreme Court as contemplated under Section 9, Article VIII of the Constitution
whose appointment may only be made on the basis of a nomination from the JBC.
To do otherwise will be a clear violation thereof.9

Thus, since the ratification of the 1987 Constitution and the establishment
of the JBC all appointments of the Chief Justice of the Supreme Court, including
the appointment of Chief Justice Reynato Puno by President Arroyo were issued
on the basis of the list of nominees submitted by the JBC.

In the 1986 Constitutional Commission, Commissioner Hilario Davide, Jr.,

expounded on the intent to insulate the judiciary from political interference and
stressed that all appointments to the judiciary must pass through the JBC:

“MR. DAVIDE: Madam President, the Committee would like to

reply. In the matter of promotion which was taken up by
Commissioner Colayco, the umbilical cord of influence by the
Members of Congress had been totally cut off by the approval of the
Article on the Judiciary. All appointments to the judiciary will pass
through the Judicial and Bar Council composed of seven members
headed by the Chief Justice as ex officio chairman, a representative
from the National Assembly and the Minister of Justice as ex officio
members, and a nominee from the Integrated Bar of the Philippines, a
law professor, a representative from the private sector and a retired
Justice. They will submit a list of at least three for every vacancy.
The President is to appoint only one from the three recommended
and, therefore, the influence exerted by any Senator or Member
would be all sound and theory. x x x” (Emphasis and underscoring
supplied)

Thus, considering that the intention was to include all appointments to the
judiciary, then it necessarily follows that the procedure of submitting a list of
nominees by the JBC from which the President will appoint encompasses as well any
vacancy to the position of Chief Justice, and not just limited to Associate Justices of
the Supreme Court.

8Section 4(1), Article VIII of the Constitution

9It is possible that as the period of nominations for Chief Justice is begun by the JBC, there may
be nominees or applicants who are not currently members of the Supreme Court. The
appointment of the next Chief Justice before the JBC submits its list of nominees precludes the
appointment of someone who is not currently and Associate Justice of the Supreme Court.
Notably, Chief Justice John Roberts of the US Supreme Court was not a member of the High
Court at the time of his appointment by President George W. Bush.

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 In fact, even the Rules of the JBC provide that the vacancy of the position of
Chief Justice is within its responsibilities, insofar as submitting nominees to the
President is concerned:

“SECTION 1. Vacancies in the Supreme Court. - Vacancies in the

Office of the Chief Justice and of Associate Justices in the Supreme
Court shall be filled within ninety days from the occurrence thereof
(CONST., Art. VIII, Sec. 4, par. 1)” (Section 1, Rule 1, JBC – 009)

Moreover, in a 1988 letter to then President Corazon Aquino, the JBC then
said that it was unanimously endorsing the established tradition since the beginning
of appointing the most senior Associate Justice as Chief Justice in order to isolate the
Supreme Court from the pressures of politics, to avoid internal strife, jockeying for
position and for purposes of stability. This endorsement is clear proof that the JBC’s
responsibility includes the submission of a list of nominees for the position of Chief
Justice. Consequently, the President is constitutionally bound to appoint the next
Chief Justice only from the list submitted by the JBC.

Finally, history and the long standing-practice in our country has proved that
since the JBC’s inception under the 1987 Constitution, the President has been always
appointed the Chief Justice of the Supreme Court from the list submitted by the JBC.

JBC NOMINEES FOR SUPREME COURT CHIEF JUSTICE

DATE JBC Nominees Date of Appointed Chief
Appointment to the Justice
Supreme Court as
Associate Justice
April 1988 Pedro Yap 08 April 1986 Pedro Yap
Associate Justice (18 April 1998 – 01
Marcelo Fernan 09 April 1986 July 1988)
Associate Justice *Aquino
Andres Narvasa 11 April 1986
Associate Justice
June 1988 Marcelo Fernan 09 April 1986 Marcelo Fernan
Associate Justice (01 July 1988 – 06
Andres Narvasa 11 April 1986 December 1991)
Associate Justice *Aquino
Ameurfina Herrera 17 January 1979/
Associate Justice 16 April 1986*
*reappointed by
Aquino
November Andres Narvasa 11 April 1986 Andres Narvasa
1991 Associate Justice (08 December 1991 –
Ameurfina Herrera 17 January 1979/ 30 November 1991)
Associate Justice 16 April 1986* *Aquino
*reappointed by

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 Aquino
Hugo Gutierrez, Jr. 14 May 1982/
Associate Justice 16 April 1986*
*reappointed by
Aquino
November Hilario Davide, Jr., 24 January 1991 Hilario Davide, Jr.
1998 Associate Justice (30 November 1998 –
Flerida Ruth Romero 16 October 1991 20 December 2005)
Associate Justice *Ramos
Josue Bellosillo 03 March 1992
Associate Justice
Jose Melo 10 August 1992
Associate Justice
Reynato Puno 28 January 1994
Associate Justice
December Artemio Panganiban 05 October 1995 Artemio Panganiban
2005 Associate Justice (20 December 2005 –
Reynato Puno 28 January 1994 07 December 2006)
Associate Justice *Arroyo
Leonardo Quisumbing 27 January 1998
Associate Justice
December Reynato Puno 28 January 1994 Reynato Puno
2006 Associate Justice (07 December 2006 –
Leonardo Quisumbing 27 January 1998 17 May 2010)
Associate Justice *Arroyo
Consuelo Santiago 06 April 1999
Associate Justice
Angelina Gutierrez 22 December 2000
Associate Justice

6. The appointment of a Chief Justice done before the occurrence of a vacancy

or in violation of the Constitution is void ab initio and has no force and
effect. Anyone participating in the issuance of the midnight appointment
may be criminally liable. This includes anyone who accepts the illegal
appointment.

As previously discussed, the midnight appointment of the next Chief Justice

in the absence of a vacancy is void ab initio. It has no force and effect and gives no
right whatsoever to the appointee.

Thus, as a consequence of a midnight appointment of the next Chief Justice,

the country will actually be in a perilous situation during a most critical period of
transition in leadership of our country. As previously pointed out, if the Defensor
proposal is carried out, the Supreme Court will be under a Chief Justice who
assumed office on the basis of a void appointment, who has no right whatsoever to
the office, and whose independence will be under a great cloud of suspicion. Thus,

15
the situation will be much worse than the scenario presented by Rep. Defensor in
support of his proposal.

It must also be pointed out that by making his proposal, Rep. Defensor, and
any member of the JBC who accedes to his proposal to commence an unlawful
process that leads to a midnight appointment in violation of the Constitution,
may be exposed to serious criminal liability.

Section 3(a) of Republic Act No. 3019 provides:

“Section 3. Corrupt practices of public officers. – In addition

to acts or omissions of public officers already penalized by existing
law, the following shall constitute corrupt practices of any public
officer and are hereby declared to be unlawful:

(a) Persuading, inducing or influencing another public

officer to perform an act constituting a violation of rules and
regulations duly promulgated by competent authority or an
offense in connection with the official duties of the latter, or
allowing himself to be persuaded, induced, or influenced to
commit such violation or offense.”

It is clear that what the Defensor proposal entails is not merely a violation
of any rule or regulation; it entails a culpable violation of the Constitution itself.
The penalty for this corrupt act is imprisonment of not less than six (6) years and
one (1) month nor more than fifteen (15) years as well as perpetual
disqualification from public office, among other penalties.
In addition, no less than Associate Justice Jose Melo (now Chairman of
Commission on Elections) who along with Chief Justice Reynato Puno concurred
in the decision in In Re: Valenzuela and Vallarta 298 SCRA 408 (1998) which
nullified similar midnight judicial appointments drew attention to the fact that
the appointment of the next Chief Justice in violation of the Constitutional ban
may constitute an election offense under Section 261 of the Omnibus Election
Code, which provides:

“Section 261. Prohibited Acts. — The following shall be

guilty of an election offense:
xxx

(g) Appointment of new employees, creation of new

position, promotion, or giving salary increases. — During the
period of forty-five days before a regular election and thirty days
before a special election:

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 (1) any head, official or appointing officer of a government
office, agency or instrumentality, whether national or local,
including government-owned or controlled corporations, who
appoints or hires any new employee, whether provisional,
temporary or casual, or creates and fills any new position, except
upon prior authority of the Commission. The Commission shall not
grant the authority sought unless, it is satisfied that the position to
be filled is essential to the proper functioning of the office or
agency concerned, and that the position shall not be filled in a
manner that may influence the election.

As an exception to the foregoing provisions, a new

employee may be appointed in case of urgent need: Provided,
however, That notice of the appointment shall be given to the
Commission within three days from the date of the appointment.
Any appointment or hiring in violation of this provision shall be
null and void.

(2) Any government official who promotes, or gives any

increase of salary or remuneration or privilege to any government
official or employee, including those in government-owned or –
controlled corporation.”

The Omnibus Election Code punishes principals, accomplices and

accessories (as defined under the Revised Penal Code) committing this election
offense. It carries the penalty of not less than one (1) year but not more than six
(6) years as well as disqualification to hold office and deprivation of the right of
suffrage.10

All Associate Justices of the Supreme Court, as well as members of the

legal profession qualified to become the next Chief Justice, are presumed to
know these laws and are aware of the indignation generated by the Defensor
proposal.

Thus, anyone who accepts such a midnight appointment well aware of the
nullity thereof is complicit in the commission of the illegal act and may be
deemed to have abandoned his previous office. No defense of good faith can be
invoked here.

In addition, any member of the bar or an Associate Justice who cooperates

in the commission of an election offense by accepting an illegal promotion
during the election ban without which acceptance the election offense would not
have been accomplished becomes a principal in the commission of the election

10 Section 264 of the Omnibus Election Code.

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offense and stands to suffer, among other penalties, disqualification from
holding public office.11

11 See Article 17 of the Revised Penal Code.

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