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SECTION 8

FAMELA R. DULAY v. JUDICIAL AND BAR COUNCIL AND PAQUITO N. OCHOA, JR., AS
EXECUTIVE SECRETARY.
Sirs/Mesdames:
Please take notice that the Court en banc issued a Resolution dated JULY 3, 2012, which
reads as follows: cralaw
"G.R No. 202143 (Famela R. Dulay v. Judicial and Bar Council and Paquito N. Ochoa, Jr.,
as Executive Secretary.). - This is a Petition for Certiorari and Prohibition, under Rule 65 of
the Rules of Court, with Prayer for the Issuance of a Temporary Restraining Order, filed by
petitioner Famela R. Dulay against the Judicial and Bar Council (JBC) and Executive
Secretary Paquito N. Ochoa, Jr., raising the following issues:
Whether the respondent Honorable JBC can legitimately, validly and constitutionally
accepts (sic) application for nomination and interview of nominees for the position of a
Chief Justice of the Honorable Court and, thereafter, submits (sic) short list of nominees to
the President of the Republic of the Philippines for the appointment of a Chief Justice of
the Honorable Court;
Whether the President of the Republic of the Philippines may legitimately, validly and
constitutionally appoint a Chief Justice of the Honorable Court, in replacement of the
removed and impeached Honorable Renato C. Corona;
Whether the respondent Honorable JBC can constitutionally be headed by a retired
Associate Justice of the Honorable Court, instead of an incumbent Chief Justice of the
Honorable Court.[1]
Petitioner claims that the President of the Republic of the Philippines cannot legitimately,
validly, and constitutionally appoint the Chief Justice of the Supreme Court, because the
1987 Constitution only empowers him to appoint members or Justices but not the Chief
Justice.[2] She adds that the Chief Justice should be replaced and designated exclusively
from among their peers.[3] Petitioner also contends that the JBC cannot be validly, legally
and constitutionally headed by a retired Associate Justice of the Supreme Court, because
the Constitution specifically provides that it be headed by the incumbent Chief Justice and
no other.[4]
We dismiss the petition.
At the outset, we look into the locus standi of petitioner to institute the present petition.
As held in De Castro v. Judicial and Bar Council:[5]
xxx 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.[6]
Indeed a liberal approach had been adopted in several notable cases. Petitioner may not
be as adversely affected by the action complained against as are others provided that she
sufficiently demonstrates in her petition that she is entitled to protection or relief from the
Court in the vindication of a public right. The assertion of a public right as a predicate for
challenging an official action rests on the theory that the petitioner represents the public in
general.[7]
In this case, however, petitioner has not shown in her petition that she is entitled to
protection or relief from the Court. She did not even explain her capacity in instituting the
present special civil action for certiorari and prohibition. Nowhere in her petition did she
assert her right either as citizen or taxpayer filing her petition on behalf of the public who
are directly affected by the issues. Accordingly, she is wanting in legal standing to institute
the instant petition. Outright dismissal of the present petition is, therefore, warranted.
Even if we ignore the technical defect and we look into the merits of the case, the petition
is still bound to be dismissed.
Simply stated, petitioner seeks the resolution of two substantive issues: (1) whether or not
the President of the Philippines has the constitutional power to appoint the Chief Justice of
the Supreme Court; and (2) whether or not the JBC can validly be headed by a person
other than the incumbent Chief Justice.
We answer in the affirmative to both questions.
Section 9, Article VIII of the Constitution, provides for the appointment of Justices and
Judges, to wit:
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. x x x
(Emphasis supplied)
In interpreting the above-stated constitutional provision, petitioner considers only the
Associate Justices as the "members of the Supreme Court" thereby excluding the Chief
Justice from the President's appointing power. Said interpretation is baseless.
A plain reading of the constitutional provisions on the Judicial Department in Article VIII of
the 1987 Constitution clearly shows that the phrase "Members of the Supreme Court" and
the words "Members" and "Member" are repeatedly used to refer to the Justices of the
Supreme Court without distinction whether he be the Chief Justice or any of the Associate
Justices or all fifteen Justices.
Section 4 (l),[8] Article VIII thereof defines the composition of the Supreme Court, namely,
"a Chief Justice and fourteen Associate Justices" who may sit en banc or, in its discretion,
in divisions of three, five, or seven Members; Section 4 (2)[9] and (3)[10] describe the
manner of conducting business in the Court whether it be En Banc or in division; Section 7
(1)[11] enumerates the qualifications of the Members of the Court and the other members
of the Judiciary; Section 11[12] provides for the security of tenure in the Judiciary; Section
12[13] states the prohibition on non-judicial assignments of the Members of the Supreme

Court and of other courts; and Section 13[14] lays down the process of decision-making.
In all of these provisions, the phrase "Members of the Supreme Court" was repeatedly
used to refer not only to the Associate Justices of the Supreme Court but includes the
Chief Justice. Thus, in Section 9 of the same Article VIII on the appointment of Justices
and Judges, the phrase "Members of the Supreme Court" clearly refers to the fifteen
Justices of the Court - one Chief Justice and fourteen (14) Associate Justices - who are
within the appointing power of the President. Although decided under a different
Constitution, we reiterate the Court's pronouncement in Vargas v. Rilloraza[15] that "there
can be no doubt that the Chief Justice and Associate Justices required x x x to compose
the Supreme Court are the regular members of the Court."[16]
We, likewise, do not agree with petitioner that the JBC can only be headed by the
incumbent Chief Justice and no other. Petitioner, in effect, argues that the JBC cannot
perform its task without an incumbent Chief Justice. To follow this logic would lead to an
eventuality where a vacancy in the Judiciary will not be filled if a vacancy occurs in the
JBC. We can likewise infer from this argument that if the Office of the Chief Justice is
vacated, the same will not be filled because there will be no "incumbent Chief Justice" to
act as Chairman of the JBC.
We definitely cannot sustain these arguments. The principal function of the JBC is to
recommend appointees to the Judiciary.[17] For every vacancy, the JBC submits to the
President a list of at least three nominees and the President may not appoint anybody who
is not in the list.[18] Any vacancy in the Supreme Court is required by the Constitution to
be filled within 90 days from the occurrence thereof.[19] This 90-day period is mandatory.
It cannot, therefore, be compromised only because the constitutionally-named Chairman
could not sit in the JBC. Although it would be preferable if the membership of the JBC is
complete, the JBC can still operate to perform its mandated task of submitting the list of
nominees to the President even if the constitutionally-named ex-officio Chairman does not
sit in the JBC. This intention is evident from the exchanges among the Commissioners
during the deliberations of the Constitutional Commission of 1986, 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.
MR. DE CASTRO. By that time, upon ratification of this Constitution, the Judicial and Bar
Council shall be in operation.
MR. CONCEPCION. We hope so.
MR. DE CASTRO. And one of the members thereof is a Member of Congress.
MR. CONCEPCION. That is right.

MR. DE CASTRO. An ex officio member. By the time this is ratified, Congress is not yet
convened and there will still be an election; so there will still be a delay of more than 90
days. Maybe before the vacancies occur in the Supreme Court, they will be filled up by the
President.
MR. CONCEPCION. That is possible.
MR. DE CASTRO. Therefore, it will take perhaps until November or December before the
four other justices will be appointed, if we follow the Judicial and Bar Council. Or can the
Judicial and Bar Council function without the presence yet of a member of Congress who
is an ex-officio member?
MR. CONCEPCION. It can operate without the ex-officio member because a majority
would be enough, although it would be preferable if it were complete.
MR. DE CASTRO. So that upon ratification of this Constitution, it is possible, and the
President may do it by appointing the members of the Judicial and Bar Council without first
a representative from Congress.
MR. CONCEPCION. That is correct.
MR. DE CASTRO. So that we can immediately fill up the four vacancies in the Supreme
Court.
MR. CONCEPCION. That is correct.
MR. DE CASTRO. I am asking this just for the record, that the vacancies in the Supreme
Court be immediately filled up so that our backlog of cases can be immediately attended
to.
x x x (Emphases supplied)[20]
Considering, however, that complete membership in the JBC is preferable and pursuant to
its supervisory power over the JBC, this Court should not be deprived of representation.
The most Senior Justice of this Court who is not an applicant for the position of Chief
Justice should participate in the deliberations for the selection of nominees for the said
vacant post and preside over the proceedings in the absence of the constitutionally-named
Ex-Officio Chairman, pursuant to Section 12 of Republic Act No. 296, or the Judiciary Act
of 1948, to wit:
Section 12. Vacancy in office of Chief Justice. - In case of vacancy in the office of the
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. (Emphasis supplied.)
IN VIEW OF THE FOREGOING, we DISMISS the petition."