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DISSENTINGOPINION

CARPIO MORALES, J.:

"Although the Chief Justice is primus inter pares, he cannot legally decide a case
on his own because of the Courts nature as a collegial body. Neither can the Chief
Justice, by himself, overturn the decision of the Court, whether of a division or
the en banc."

Associate Justice Renato C. Corona in


Complaint of Mr. Aurelio Indencia Arrienda
against Justice Puno, 499 Phil. 1, 14 (2005)

Primus Inter pares. First among equals. The Latin maxim indicates that a person is
the most senior of a group of people sharing the same rank or office. The phrase has
been used to describe the status, condition or role of the prime minister in most
parliamentary nations, the high-ranking prelate in several religious orders, and the
chief justice in many supreme courts around the world.[1]

The inclination to focus on the inter pares without due emphasis on


the primus/prima[2] has spawned contemporary discourse that revives the original
tug-of-war between domination and parity, which impasse the conceived maxim
precisely intended to resolve.

In the present case, several arguments attempt to depict a mirage of doomsday


scenarios arising from the impending vacancy of the primus in the Court as a
springboard for their plea to avert a supposed undermining of the independence of
the judiciary. In reality, the essential question boils down to the limitation on the
appointing power of the President.

The ponencia of Justice Bersamin holds that the incumbent President can appoint
the next Chief Justice upon the retirement of Chief Justice Reynato S. Puno on May
17, 2010 since the prohibition during election period[3] does not extend to
appointments in the judiciary, thereby reversing In re appointments of Hon.
Valenzuela & Hon. Vallarta.[4]
The ponencia additionally holds that the Judicial and Bar Council (JBC) has
until May 17, 2010, at the latest, within which to submit to the President the list of
nominees for the position of Chief Justice.

I DISSENT.

Constitutional draftsmanship style is the


weakest aid in arriving at a constitutional
construction

The first ratiocination adverts to the organization and arrangement of the


provisions of the Constitution that was, as the ponencia declares, purposely made by
the framers of the Constitution to reflect their intention and manifest their vision of
the charters contents.

It is unfortunate that the ponencia chiefly relies on the trivialities of draftsmanship


style in arriving at a constitutional construction. The petitioner in Anak Mindanao
Party-List Group v. The Executive Secretary[5] raised a similar argument, but the
Court held:

AMIN goes on to proffer the concept of ordering the law which, so it alleges, can
be said of the Constitutions distinct treatment of these three areas, as reflected in
separate provisions in different parts of the Constitution. It argues that the
Constitution did not intend an over-arching concept of agrarian reform to
encompass the two other areas, and that how the law is ordered in a certain
way should not be undermined by mere executive orders in the guise of
administrative efficiency.

The Court is not persuaded.

The interplay of various areas of reform in the promotion of social justice is not
something implausible or unlikely. Their interlocking nature cuts across labels and
works against a rigid pigeonholing of executive tasks among the members of the
Presidents official family. Notably, the Constitution inhibited from identifying and
compartmentalizing the composition of the Cabinet. In vesting executive power in
one person rather than in a plural executive, the evident intention was to invest the
power holder with energy.

AMIN takes premium on the severed treatment of these reform areas in marked
provisions of the Constitution. It is a precept, however, that inferences drawn
from title, chapter or section headings are entitled to very little weight. And so
must reliance on sub-headings, or the lack thereof, to support a strained
deduction be given the weight of helium.

Secondary aids may be consulted to remove, not to create doubt. AMINs


thesis unsettles, more than settles the order of things in construing the
Constitution. Its interpretation fails to clearly establish that the so-called
ordering or arrangement of provisions in the Constitution was consciously
adopted to imply a signification in terms of government hierarchy from where
a constitutional mandate can per se be derived or asserted. It fails to
demonstrate that the ordering or layout was not simply a matter of style in
constitutional drafting but one of intention in government structuring. With its
inherent ambiguity, the proposed interpretation cannot be made a basis for
declaring a law or governmental act unconstitutional.[6] (emphasis and
underscoring supplied)

Concededly, the allocation of three Articles in the Constitution devoted to the


respective dynamics of the three Departments was deliberately adopted by the
framers to allocate the vast powers of government among the three Departments in
recognition of the principle of separation of powers.

The equation, however, does not end there. Such kind of formulation detaches itself
from the concomitant system of checks and balances. Section sequencing alone of
Sections 14, 15 and 16 of Article VII, as explained in the fourth ratiocination, does
not suffice to signify functional structuring.

That the power of judicial appointment was lodged in the President is a recognized
measure of limitation on the power of the judiciary, which measure, however, is
counterbalanced by the election ban due to the need to insulate the judiciary from
the political climate of presidential elections. To abandon this interplay of checks
and balances on the mere inference that the establishment of the JBC could de-
politicize the process of judicial appointments lacks constitutional mooring.
The establishment of the JBC is not
sufficient to curtail the evils
of midnight appointments in the judiciary

The constitutional prohibition in Section 15 found its roots in the case of Aytona
v. Castillo,[7] where among the midnight or last minute appointments voided to abort
the abuse of presidential prerogatives or partisan efforts to fill vacant positions
were one in the Supreme Court and two in the Court of Appeals.

Heeding Aytonas admonition, the Constitutional Commission (ConCom) saw it fit


to provide for a comprehensive ban on midnight appointments, finding that the
establishment of the JBC is not enough to safeguard or insulate judicial appointments
from politicization. The ConCom deliberations reveal:

MR. GUINGONA: Madam President.

THE PRESIDENT: Commissioner Guingona is recognized.

MR. GUINGONA: Would the distinguished proponent accept an amendment to his


amendment to limit this prohibition to members of collegiate
courts? The judges of the lower courts perhaps would not
have the same category or the same standing as the others
mentioned here.

MR. DAVIDE: Pursuant to the post amendment, we already included here


government-owned or controlled corporations or their
subsidiaries which are not even very sensitive positions. So
with more reason that the prohibition should apply to
appointments in these bodies.

THE PRESIDENT: Does the Committee accept?

FR. BERNAS: What is common among these people Ministers, Deputy Ministers,
heads of bureaus or offices is that they are under the control
of the President.

MR. GUINGONA: That is correct.

FR. BERNAS: Whereas, the other offices the Commissioner mentioned are
independent offices.

MR. DAVIDE: The idea of the proposal is that about the end of the term of the
President, he may prolong his rule indirectly by appointing
people to these sensitive positions, like the commissions, the
Ombudsman, the JUDICIARY, so he could perpetuate
himself in power even beyond his term of office; therefore
foreclosing the right of his successor to make appointments
to these positions. We should realize that the term of the
President is six years and under what we had voted on, there
is no reelection for him. Yet he can continue to rule the
country through appointments made about the end of his
term to these sensitive positions.

FR. BERNAS: At any rate, there are other checks as far as the appointment of those
officers is concerned.

MR. DAVIDE: Only insofar as the Commission on Appointments is concerned for


offices which would require consent, and the Judicial Bar
Council insofar as the judiciary is concerned.

FR. BERNAS: We leave the matter to the body for a vote. [8] (capitalization and
emphasis supplied)

The clear intent of the framers is thus for the ban on midnight appointments
to apply to the judiciary. The succeeding interpellations[9] suggest no departure from
this intent.

For almost half a century, the seeds of Aytona, as nurtured and broadened by
the Constitution, have grown into an established doctrine that has weathered legal
storms like Valenzuela.

The second ratiocination in the ponencia could thus not remove an added
constitutional safeguard by pretending to have examined and concluded that the
establishment of the JBC had eliminated all encompassing forms of political
maneuverings during elections. Otherwise, reading into the Constitution such
conclusion so crucial to the scheme of checks and balances, which is neither written
nor tackled, undermines the noticeable silence or restraint exercised by the framers
themselves from making a definitive analysis.

To illustrate, the instance given in the fifth ratiocination that having the new
President appoint the next Chief Justice cannot ensure judicial independence because
the appointee can also become beholden to the appointing authority bears an
inconsistent stance. It does not admit or recognize that the mechanism of removal
by impeachment eliminates the evils of political indebtedness. In any event, that
level of reasoning overlooks the risk of compromising judicial independence when
the outgoing President faces the Court in the charges that may be subsequently filed
against her/him, and when the appointing President is up for re-election in the
peculiar situation contemplated by Section 4, Article VII of the Constitution.

All rules of statutory construction revolt


against the interpretation arrived at by
the ponencia

It is simplistic and unreliable for the ponencia to contend that had the framers
intended to extend the ban in Article VII to appointments in the judiciary, they would
have easily and surely written so in Article VIII, for it backlashes the question that
had the framers intended to exclude judicial appointments in Article VIII from the
prohibition in Article VII, they would have easily and surely written so in the
excepting proviso in Article VII.
Taking into account how the framers painstakingly rummaged through various
sections of the Constitution and came up with only one exception with the need to
specify the executive department, it insults the collective intelligence and diligence
of the ConCom to postulate that it intended to exclude the judiciary but missed out
on that one.

To hold that the ban on midnight appointments applies only to executive positions,
and not to vacancies in the judiciary and independent constitutional bodies, is to
make the prohibition practically useless. It bears noting that Section 15, Article VII
of the Constitution already allows the President, by way of exception, to make
temporary appointments in the Executive Department during the prohibited
period. Under this view, there is virtually no restriction on the Presidents power of
appointment during the prohibited period.

The general rule is clear since the prohibition applies to ALL kinds
of midnight appointments. The Constitution made no distinction. Ubi lex non
distinguit nec nos distinguere debemos.
The exception is likewise clear. Expressio unius et exclusio alterius. The express
mention of one person, thing or consequence implies the exclusion of all
others.[10] There is no clear circumstance that would indicate that the enumeration in
the exception was not intended to be exclusive. Moreover, the fact that Section 15
was couched in negative language reinforces the exclusivity of the exception.

Under the rules of statutory construction, exceptions, as a general rule, should be


strictly but reasonably construed; they extend only so far as their language fairly
warrants, and all doubts should be resolved in favor of the general provisions rather
than the exception. Where a general rule is established by statute with exceptions,
the court will not curtail the former nor add to the latter by implication.[11] (italics in
the original; underscoring supplied)

The proclivity to innovate legal concepts is enticing. Lest the basic rule be forgotten,
it helps to once more recite that when the law is clear, it is not susceptible to
interpretation and must be applied regardless of who may be affected, even if the
law may be harsh or onerous.[12]

In its third ratiocination, the ponencia faults Valenzuela for not according weight
and due consideration to the opinion of Justice Florenz Regalado. It accords high
regard to the opinion expressed by Justice Regalado as a former ConCom Member,
to the exception of the opinion of all others similarly situated.

It bears noting that the Court had spoken in one voice


in Valenzuela. The ponencia should not hastily reverse, on the sole basis of Justice
Regalados opinion, the Courts unanimous en banc decision penned by Chief Justice
Andres Narvasa, and concurred in by, inter alia, Associate Justices who later
became Chief Justices Hilario Davide, Jr., Artemio Panganiban and Reynato Puno.

The line of reasoning is specious. If that is the case and for accuracys sake, we might
as well reconvene all ConCom members and put the matter to a vote among them.
Providentially, jurisprudence is replete with guiding principles to ascertain the
true meaning of the Constitution when the provisions as written appear unclear
and the proceedings as recorded provide little help:
While it is permissible in this jurisdiction to consult the debates and proceedings of
the constitutional convention in order to arrive at the reason and purpose of the
resulting Constitution, resort thereto may be had only when other guides fail as said
proceedings are powerless to vary the terms of the Constitution when the meaning
is clear. Debates in the constitutional convention "are of value as showing the views
of the individual members, and as indicating the reasons for their votes, but they
give us no light as to the views of the large majority who did not talk, much less of
the mass of our fellow citizens whose votes at the polls gave that instrument the
force of fundamental law. We think it safer to construe the constitution from what
appears upon its face." The proper interpretation therefore depends more on how it
was understood by the people adopting it than in the framers' understanding
thereof.[13] (underscoring supplied)

The clear import of Section 15 of Article VII is readily apparent. The people may
not be of the same caliber as Justice Regalado, but they simply could not read into
Section 15 something that is not there. Casus omissus pro omisso habendus est.

What complicates the ponencia is its great preoccupation with Section 15 of Article
VII, particularly its fixation with sentences or phrases that are neither written nor
referred to therein. Verba legis non est recedendum, index animi sermo est. There
should be no departure from the words of the statute, for speech is the index of
intention.

IN FINE, all rules of statutory construction virtually revolt against the interpretation
arrived at by the ponencia.

The 90-day period to fill a vacancy in the


Supreme Court is suspended during the
ban on midnight appointments

Although practically there is no constitutional crisis or conflict involved upon the


retirement of the incumbent Chief Justice, the ponencia illustrates the inapplicability
of the 90-day mandate to every situation of vacancy in the Supreme Court (i.e., the
19-day vacuum articulated in the sixth ratiocination) if only to buttress its thesis
that judicial appointment is an exception to the midnight appointments ban. The
contemplated situation, however, supports the idea that the 90-day period is
suspended during the effectivity of the ban.
I submit that the more important and less complicated question is whether the 90-
day period in Section 4(1) of Article VIII[14] runs during the period of prohibition in
Section 15 of Article VII.

In response to that question, the ponencia declares that it is the Presidents imperative
duty to make an appointment of a Member of the Supreme Court within 90
days from the occurrence of the vacancy [and that t]he failure by the President to do
so will be a clear disobedience to the Constitution.[15]

The ponencia quotes certain records of the ConCom deliberations which, however,
only support the view that the number of Justices should not be reduced for any
appreciable length of time and it is a mandate to the executive to fill the
vacancy. Notably, there is no citation of any debate on how the framers reckoned or
determined an appreciable length of time of 90 days, in which case a delay of one
day could already bring about the evils it purports to avoid and spell a culpable
violation of the Constitution. On the contrary, that the addition of one month to the
original proposal of 60 days was approved without controversy[16] ineluctably shows
that the intent was not to strictly impose an inflexible timeframe.

Respecting the rationale for suspending the 90-day period, in cases where there is
physical or legal impossibility of compliance with the duty to fill the vacancy within
the said period, the fulfillment of the obligation is released because the law cannot
exact compliance with what is impossible.

In the present case, there can only arise a legal impossibility when the JBC
list is submitted or the vacancy occurred during the appointments ban and the 90-
day period would expire before the end of the appointments ban, in which case the
fresh 90-day period should start to run at noon of June 30. This was the factual
antecedent respecting the trial court judges involved in Valenzuela. There also arises
a legal impossibility when the list is submitted or the vacancy occurred prior to the
ban and no appointment was made before the ban starts, rendering the lapse of the
90-day period within the period of the ban, in which case the remaining period
should resume to run at noon of June 30. The outgoing President would be released
from non-fulfillment of the constitutional obligation, and the duty devolves upon the
new President.
Considering also that Section 15 of Article VII is an express limitation on the
Presidents power of appointment, the running of the 90-day period is
deemed suspended during the period of the ban which takes effect only once every
six years.

This view differs from Valenzuela in that it does not implement Section 15 of Article
VII so as to breach Section 4(1) of Article VIII. Instead of disregarding the 90-day
period in the observance of the ban on midnight appointments, the more logical
reconciliation of the two subject provisions is to consider the ban as having the effect
of suspending the duty to make the appointment within 90 days from the occurrence
of the vacancy. Otherwise stated, since there is a ban, then there is no duty to appoint
as the power to appoint does not even exist. Accordingly, the 90-day period is
suspended once the ban sets in and begins or continues to run only upon the
expiration of the ban.

One situation which could result in physical impossibility is the inability of the JBC
to constitute a quorum for some reasons beyond their control, as that depicted by
Justice Arturo Brion in his Separate Opinion, in which case the 90-day period could
lapse without fulfilling the constitutional obligation.

Another such circumstance which could frustrate the ponencias depiction of the
inflexibility of the period is a no-takers situation where, for some reason, there are
no willing qualified nominees to become a Member of the Court.[17] Some might find
this possibility remote, but then again, the situation at hand or the absurdity[18] of a
19-day overlapping vacuum may have also been perceived to be rare.

The seventh ratiocination is admittedly a non-issue. Suffice it to state that the


Constitution is clear that the appointment must come from a list x x x prepared by
the Judicial and Bar Council.

The Supreme Court can function


effectively during
the midnight appointments ban without
an appointed Chief Justice
The ponencia also holds that the JBC has until May 17, 2010, at the latest, within
which to submit to the President the list of nominees for the position of Chief
Justice. It declares that the JBC should start the process of selecting the candidates
to fill the vacancy in the Supreme Court before the occurrence of the vacancy,
explaining that the 90-day period in the proviso, Any vacancy shall be filled within
ninety days from the occurrence thereof, is addressed to the President, not to the
JBC.

Such interpretation is absurd as it takes the application and nomination stages in


isolation from the whole appointment process. For the ponencia, the filling of the
vacancy only involves the President, and the JBC was not considered when the
period was increased from 60 days to 90 days. The sense of the Concom is the exact
opposite.[19]

The flaw in the reasoning is made more evident when the vacancy occurs by virtue
of death of a member of the Court. In that instance, the JBC could never anticipate
the vacancy, and could never submit a list to the President before the 90-day period.

Sustaining the view means[20] that in case the President appoints as Chief Justice a
sitting member of the Court, from a JBC list which includes, for instance, incumbent
justices and outsiders, the JBC must forthwith submit a list of nominees for the post
left vacant by the sitting member-now new Chief Justice. This thus calls for the
JBC, in anticipation, to also commence and conclude another nomination process to
fill the vacancy, and simultaneously submit a list of nominees for such vacancy,
together with the list of nominees for the position of Chief Justice. If the President
appoints an outsider like Sandiganbayan Justice Edilberto Sandoval as Chief Justice,
however, the JBCs toil and time in the second nomination process are put to waste.

It is ironic for the ponencia to state on the one hand that the President would
be deprived of ample time to reflect on the qualifications of the nominees, and to
show on the other hand that the President has, in recent history, filled the vacancy in
the position of Chief Justice in one or two days.

It is ironic for the ponencia to recognize that the President may need as much as 90
days of reflection in appointing a member of the Court, and yet abhor the idea of an
acting Chief Justice in the interregnum as provided for by law,[21] confirmed by
tradition,[22] and settled by jurisprudence[23] to be an internal matter.

The express allowance of a 90-day period of vacancy rebuts any policy argument on
the necessity to avoid a vacuum of even a single day in the position of an appointed
Chief Justice.

As a member of the Court, I strongly take exception to the ponencias


implication that the Court cannot function without a sitting Chief Justice.

To begin with, judicial power is vested in one Supreme Court [24] and not in its
individual members, much less in the Chief Justice alone. Notably, after Chief
Justice Puno retires, the Court will have 14 members left, which is more than
sufficient to constitute a quorum.

The fundamental principle in the system of laws recognizes that there is only one
Supreme Court from whose decisions all other courts are required to take their
bearings. While most of the Courts work is performed by its three divisions, the
Court remains one court single, unitary, complete and supreme. Flowing from this
is the fact that, while individual justices may dissent or only partially concur, when
the Court states what the law is, it speaks with only one voice.[25]

The Court, as a collegial body, operates on a one member, one vote basis, whether
it sits en banc or in divisions. The competence, probity and independence of the
Court en banc, or those of the Courts Division to which the Chief Justice belongs,
have never depended on whether the member voting as Chief Justice is merely
an acting Chief Justice or a duly appointed one.

IN LIGHT OF THE FOREGOING, I vote to hold, for the guidance of the Judicial
and Bar Council, that the incumbent President is constitutionally proscribed from
appointing the successor of Chief Justice Reynato S. Puno upon his retirement
on May 17, 2010 until the ban ends at 12:00 noon of June 30, 2010.
CONCHITA CARPIO MORALES
Associate Justice

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