Beruflich Dokumente
Kultur Dokumente
SUPREME COURT
Manila
-versus
PREFATORY STATEMENT
This case is a no-brainer. It simply asks for, not the construction, but
the application of the Constitutional requirements for judges. The
PHILIPPINE CONSTITUTION being SUPREME, there can be no reason to
extend the list (qualification); not even by a LONG-STANDING POLICY of
the JUDICIAL AND BAR COUNCIL (JBC).
Right or wrong, (long or short), the President, Congress, the Court, the
BOD and the LWUA have no choice but to follow the Constitution 1
[Italics supplied].
The answer to both question is NO. by this alone this court should declare
the assailed policy UNCONSTITUTIONAL. Theres no need for further
1
disquisition.
The respondent put the cart ahead of the horse. The Petitioner was
disqualified prior to the selection process. He was not even interviewed. The
Respondent JBC and Solicitor General (Solgen) COMMENTS IS NOT
RESPONSIVE. It already argues DISCRETION and LIST OF NOMINEES
as a result of the SELECTION process when the DISQUALIFICATION
HAPPENED AT THE RECRUITMENT PHASE (HE WAS
DISQUALIFIED EARLY IN THE PRE- NOMINATION STAGE BEFORE
INTERVIEW), PRIOR TO the SELECTION PROCESS. In the
determination of who meets the minimum qualification prescribed by the
constitution and congress which the respondent JBC refer s as Prima Facie
Qualification, This does not involved exercise of Respondent DISCRETION
as it is already set by the constitution and congress through statutes.
Seven (7) out of the fifteen (15) Supreme Court Justices do not have
experience as a Judge. This will lead to the conclusion that the assailed
Policy is not indispensable.
This is also similar to CHAVEZ vs JBC GR No. 202241 July 17, 2012
where this Honorable Court ruled:
It is filed directly with this Court, considering that the main issue is
purely legal and the Chairperson of the JBC is the Chief Justice of the
Supreme Court. Its resolution is of transcendental importance not only for
the Applicant- Petitioner and the rest of aspiring municipal judges but also
for the INTEGRITY of this Honorable Court whose members, HAVE NOT
COMPLIED with the JBCs 5 year-service as above mentioned.
Petitioner had been in the practice of law for almost 12 years, the last
1 year and 8 months of which were spent in the judiciary as Presiding Judge
of the Municipal Circuit Trial Court of Compostela-New Bataan when on
September 27, 2013 he filed his APPLICATION through electronic mail for
the position of PRESIDING JUDGE in the following courts: RTC-Br 31
(Tagum City); RTC-Br 13 (Davao City); and RTC-Br 6 (Prosperidad,
Agusan del Sur).
On December 18, 2013 the JBC informed 2 him that he could not be
considered an applicant. He was not listed as among those to be interviewed.
So he filed a PROTEST and a RECONSIDERATION which were
acknowledged by JBC in its letter 3 dated January 3, 2014; then in another,
dated February 3, 2014, which became the subject of this PETITION:
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their current position for at least five (5) years. Hence, since Your Honor
has just been a judge for more than one year only, the JBC stood firm on
its decision of not including you yet in the list of applicants for the
Regional Trial Court (RTC), Branch 31, Tagum City; RTC Branch 13,
Davao City; and RTC, Branch 6, Prosperidad, Agusan del Sur.
[Underscoring supplied]
ISSUES
DISCUSSION
PROCEDURAL ISSUES
4
REPRESENTATIVE GR No. 194276 September 14, 2011)
In Kilosbayan v. Guingona this Honorable Court brushed aside the hierarchy of courts
due to the importance of the issues therein to determine whether or not the branches
have kept themselves within the limits of the Constitution and the laws and that they
have not abused the discretion given to them (Association of Small Landowners in
the Philippines, Inc. v. Secretary of Agrarian Reform, SOURCE, citing Ex Parte Levitt,
303 US 633. (Emphasis supplied) 19 Macalintal v. Comelec, G.R No. 157013 (July 10,
2003). 20 Id. 21 See Uy v. Contreras, supra; Manalo v. Gloria, 236 SCRA 130 [1994];
People v. Court of Appeals, 301 SCRA 566 (1999). 22 232 SCRA 110.
In Chavez v. PEA-Amari , this Honorable Court had occasion to state: PEA and AMARI
The principle of hierarchy of courts applies generally to cases involving factual
questions. As it is not a trier of facts, the Court cannot entertain cases involving factual
issues. The instant case, however, raises constitutional issues of transcendental
importance to the public. The Court can resolve this case without determining any
factual issue related to the case. Also, the instant case is a petition for mandamus
which falls under the original jurisdiction of the Court under Section 5, Article VIII of
the Constitution. We resolve to exercise primary jurisdiction over the instant case.
Moreover, in Santiago v. Vasquez , this Honorable Court ruled that petitions for
certiorari, prohibition, or mandamus, though cognizable by other courts, may directly be
filed with the Supreme Court if the redress desired cannot be obtained in the appropriate
courts or where exceptional compelling circumstances justify availment of a remedy
within and calling for the exercise of our primary jurisdiction
The arguments of the Respondent that certiorari is not proper remedy as they are not
Judicial or Quasi Judicial bodies is no longer availing.
Xx With respect to the Court, however, the remedies of certiorari and prohibition are
necessarily broader in scope and reach, and the writ of certiorari or prohibition may be
issued to correct errors of jurisdiction committed not only by a tribunal, corporation,
board or officer exercising judicial, quasi-judicial or ministerial functions but also to set
right, undo and restrain any act of grave abuse of discretion amounting to lack or excess
of jurisdiction by any branch or instrumentality of the Government, even if the latter
does not exercise judicial, quasi-judicial or ministerial functions. This application is
expressly authorized by the text of the second paragraph of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit or nullify the acts of legislative and
executive officials.( Ma. Carolina Araullo Person Bagong Alyansang Makabayan, et al.
Vs. Benigno Aquino, et.al. , G.R. 209287, xxx G.R. Nos. 209287, 209135, 209136,
209155,209164, 209260,209442, 209517 & 209569 July 1, 2014)
The questioned act of the JBC is not that of making the shortlist but
that of excluding the Petitioner from becoming an Applicant. He has not
been considered for the written examination and the interview at all; was not
made part of the List of Applicants--- because according to JBC, he lacked 5
5
years in the service.
But this denial is at the early stage of the selection process. The JBC
Secretariat supposedly will ONLY receive the applications. Then, upon
what appears on the face, it will verify compliance with the long list of
requirements as published:
If the requirements are incomplete, the Applicants will not be considered for
interview. Otherwise, the Secretariat will prepare the list of Applicants for
publication.
6
1. It is a violation of Art . Section 7 article VIII of the 1987 constitution . The
qualification of an RTC Judge is already set by the constitution and by congress;
2. Only the Congress was allowed by the constitution to prescribe additional
qualifications of judges of lower courts. The JBC is not a the Congress;
3. It is a violation of DUE Process. It is UNWRITTEN it was not published;
4.Respondents sometimes implement and sometimes did not implement the five year
service unwritten policy and deferred the implementation of a mandatory
provision of RA Section 10 R.A. 8557, February 26, 1998.xx only participants
who have completed the programs prescribed by the Academy and have
satisfactorily complied with all the requirements incident thereto may be
appointed or promoted to any position or vacancy in the Judiciary.
Instead what the JBC could have done was to make the length of
service as one of the criteria and to assign points thereto. For example if the
applicant is a Judge for more than 5 years in lower court the points he gets is
5. If he has less than 5 years, he only gets one point. Or any other means by
which the years of experience as trial judge may be factored in the required
competence for the vacant position.
Definitely the JBC cannot disqualify the Applicant if he meets all the
requirements set by the constitution and by the congress, He should be
allowed to undergo the selection process .
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According to Respondent.
The POLICY must conform with the law and constitution. Thus even if the
formulation of the Policy in the selection process falls squarely with the JBC
this does not mean that they have blanket authority to formulate any Policy.
The policy should be in accordance with the law and the constitution. The
qualification is already prescribed by the constitution and statutes there is no
need for the Respondent to add or expand the same.
According to Respondent.
Based on the JBCs collective Judgment, those who have been judges of first
level courts of five (5) years are better qualified for promotion to second
level courts.
Petitioners Reply.
The conclusion that Judges of first level courts of five(5) years are better
qualified for promotion to second level courts. Is without basis.
WHY NOT TEN YEARS OR FIFTEEN YEARS? And why is it that other
applicants is not required to render service as a Judge in lower court before
they can be appointed? Does it mean they do not have professional skilss to
declog dockets?
The petitioner was able to reduce its docket to _______ for just one more
than year.
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Respondent argued that: xxx A five year stint in the Judiciary can also
provide evidence of the integrity, probity, and independence of judges
seeking promotion.
Petitioners reply. It is not true JBC JBC Rule 009 provides how Integrity,
probity and independence is measure to wit: JBC RULE 009, Provides: 1)
Rule 4 procedure in determining INTEGRITY, 2) Rule 5 procedure to
determine Probity and independence, 3) Rule 6 Sound Physical, Mental and
emotional condition.
The five year stint in the judiciary cannot be an evidence of integrity, probity
and independence it only shows length of service.
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Judges: such other functions and duties
as the Supreme Court may
1.Section 15, BP 129 AN ACT assign to it.
REORGANIZING THE JUDICIARY,
APPROPRIATING FUNDS THEREFOR, AND ASSAILED POLICY
FOR OTHER PURPOSES PRESCRIBED BY THE JBC:
Further to our letter dated 3
Qualifications. No persons shall be appointed January 2014 we would like to
Regional Trial Judge unless he is a natural-born inform Your Honor that during its
citizen of the Philippines, at least thirty-five years en banc meeting on 27 January
of age, and for at least ten years, has been 2014, the Judicial and Bar Council
engaged in the practice of law in the Philippines (JBC) duly noted your letter and
or has held a public office in the Philippines agreed to maintain its long-
requiring admission to the practice of law as an standing policy of opening the
indispensable requisite. chance for promotion to second
level courts to, among others,
2.Section 10 R.A. 8557, February 26, 1998 AN INCUMBENT JUDGES WHO
ACT ESTABLISHING THE PHILIPPINE SERVED IN THEIR
JUDICIAL ACADEMY, DEFINING ITS CURRENT POSITION FOR AT
LEAST FIVE (5) YEARS.
POWERS AND FUNCTIONS,
APPROPRIATING FUNDS THEREFOR, AND
FOR OTHER PURPOSES
The Solgen may be correct the respondent may set standards / criteria in
choosing its nominees. Subject only to the minimum qualification required
by the constitution and law.
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respondent has set. As discussed in the Petition the Respondent implement a
Policy not in accordance with the constitution and statutes and deferred the
mandatory requirement of completion of pre judicature program as provided
under Section 10 R.A. 8557, February 26, 1998
The Solgen erred. We are not comparing Judges with five years experience
and Judges with less than five years experience this is not the
QUALIFICATION that is provided by the constitution and by the
CONGRESS. The qualification is TEN YEARS PRACTICE OF LAW in the
PHILIPPINES. The constitution does not discriminate or classified what
kind of Practice be it as a Government lawyer or a Private Practice. Whether
as a Judge as a prosecutor, Public Attorney, a Judge or a combination as long
as if you add all this experience it will amount to ten(10) years practice.
The solgen erred that JBC merely exercised it discretion with the
constitutional requirement and its rule that A Member of the Judiciary must
be of proven competence , integrity, probity and independence. The
Petitioner meets this requirement it is the same requirement that he passed
when he was appointed as a Judge in MCTC.
11
The letter of the JBC is very clear the cause of disqualification is not on
competence, integrity, probity and independence but because of the assailed
five year service in lower court for incumbent Judges policy to wit:
Hence, since Your Honor has just been a judge for more
than one year only, the JBC stood firm on its decision
of not including you yet in the list of applicants for
the Regional Trial Court (RTC), Branch 31, Tagum
City; RTC Branch 13, Davao City; and RTC, Branch 6,
Prosperidad, Agusan del Sur.
The SOLGEN JARDELIZA may have mistakenly equate his CASE when he
was disqualified because of question of INTEGRITY. (A.M. No. 14-07-01-
SC-JBC (Re: Nomination of Solicitor General Francis H. Jardeleza for the
Position of Associate Justice Vacated by Justice Roberto A. Abad),
SolGen Jardeleza secured four (4) out of the six (6) votes the same number
of votes that Judge Reynaldo B. Daway did. Yet, Judge Daway was included
in the nomination list that the Council submitted to the President, but
SolGen Jardeleza was not. Kudos to Solgen Jardeliza for standing in favor of
the Respondent he should not complain of what had happened to him. He is
now estopped from availing other remedies.
Solgen erred. The assailed policy is not reasonable. Experience should cover
all kinds of practice of law. It should not be limited to five years experience
as a lower court judge and should not be imposed only to incumbent lower
court judge.
The solgen belittled, under estimates, mocks and look upon the petitioner
to quote:
12
Surely, at this point, decisions he rendered as MTC Judge are
still under review by the proper appellate courts. In all
probability, not one decision has reach the Supreme Court.
How about those who was appointed to the Judiciary who was never a Judge
and have never rendered a decision? It is an insult to the majority of the
Supreme Court Justices who did not have any experience as a Judge.
Second, the controversy is between two parties that have adverse interests.
The respondent refuse to qualify the Petitioners as applicants when the
petitioner meets the minimum qualification prescribed by the constitution
and congress.
Third, it is clear that Petitioner has a legal and substantive interest in the
implementation of the assailed Unwritten long standing policy of the
Respondent. Petitioner has adequately shown that, he is an applicant of the
vacant position in the RTC 31, Tagum City, RTC 13, Davao City and
,Branch 6, Properidad, Agusan del Sur was disqualified by the respondent
and was not considered as applicant.
The petitioner was denied of his constitutional right to due process, right to
equal protection of laws and equal opportunity of employment in broader
category a violation of his constitutional right to LIBERTY. This are
constitutional right which is demandable, it is not a privilege BUT A RIGHT.
The arguments of the petitioner is not based on surmises and conjectures. He
was disqualified because of the assailed Policy.
The question of law is whether or not the is JBC allowed to add another
qualification? The answer is Plain and Simple. NO.
The Solgen argues that the said Policy is part of an internal guideline or
criteria in the selection and nomination of prospective appointees to the
second level courts. Hence, there is no need to published the same.
The problem here is that there is already a published Rule JBC-Rule 009 that
governs the recruitment and selection process of a Judge. The assailed policy
is not included in the Published Rules. It is UNWRITTEN. It is not only a
criteria but a DISQUALIFICATION. The policy affects all those who
applied for the position, they are not mere subordinates or JBC employees .
13
Since the Policy was not published or was included in the published Rules
the Petitioner has the first opportunity to know said policy when the JBC
informed him in a letter why he was disqualified. Thus, Logic dictates that
the petition is timely as it was filed immediately after the knowledge of the
UNWRITTEN POLICY.
Petitioners Reply. The Petitioner is not misguided nor committed grave mis-
appreciation of the nature of authority of the JBC.
14
The JBC is not authorize to set two standards. One standard is applicable to
all (the ten Year Practice of Law in the Philippines) and another standard
applicable only to applicants who are incumbent Judges.
The JBC policy is not an enforcement of the policy fixed by law. Rather a
violation of the constitution and the law where it only requires 10 years
practice of law. The law did not require another five years service in lower
courts for incumbent judges.
Thus the JBC should excludes applicants and recommendees who do not
meet the constitutional and statutory qualifications.
Petitioners Reply.
Under Rule 10 Sec. 1 of the JBC Rules once the applicants meet the PRIMA
FACIE QUALIFICATION the council will prepare the long list and
published in two(2) newspaper of general circulation.
The petitioner despite passing the Prima Facie qualification was not included
in the LONG LIST, in violation of the respondents own Rule.
Respondent argues:
Petitioners Reply.
There are two phases in employment process. The recruitment and selection
process. In recruitment you consider all applicants who meet the minimum
qualification. This qualified applicants will undergo the selection process
through various interviews and tests. In this case the Petitioner was not even
considered as qualified applicant.
Petitioners Reply.
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As soon as PHILJA shall have been fully organized with the
composition of its Corps of Professorial Lecturers and other
personnel, only participants who have completed the programs
prescribed by the Academy and have satisfactorily complied with all
the requirements incident thereto may be appointed or promoted to
any position or vacancy in the Judiciary.
In sum the adoption of the policy (petitioners so- called 5-year requirement)
applied by the JBC to petitioners case is necessary and incidental to the
function conferred by the constitution on the JBC. Rather than unduly
enlarge the constitutional and statutory requirements for Judges of lower
courts, it simplifies or operationalizes them, xxx
Petitioners Reply.
The JBC could have assigned points to the number of years the applicant
served as Judge in the Lower Court it should not served as disqualification.
17
Petitioners reply:
The Policy is not reasonable. The petitioner is already almost 12 years in his
practice of law in the Philippines, all of which is rendered as a government
lawyer (a District Attorney of PPA- PDO-Southern Mindanao, a Public
Prosecutor of Compostela Valley Province and now as an MCTC Judge in
Compostela- New Bataan) . The Constitution only requires 10 years.
2. The Congress shall prescribe the qualifications of judges of lower courts, but no
person may be appointed judge thereof unless he is a citizen of the Philippines and a
member of the Philippine Bar.
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THE QUALIFICATION OF JUDGES.
True to its constitutional mandate, the Court cannot craft and tailor
constitutional provisions in order to accommodate all of situations no matter
how ideal or reasonable the proposed solution may sound. To the exercise of
this intrusion, the Court declines. (Francisco I. Chavez, vs JBC, G.R. No.
202242, April 16, 2013)
The Policy is unreasonable because it was not applied uniformly with all due
see the profile of the Supreme Court Justices themselves. Other applicants
who is similarly situated as to the ten(10) year practice of law was
interviewed by the JBC while the petitioner was not afforded the
opportunity to be heard.
ALL applicant who meet the minimum qualification including the ten(10)
year practice of law in the Philippines should be considered an applicant and
should go through the selection process.
In the JBCs Rule 009 the five years assailed Policy is not also listed as
disqualification.
Section 7. (1) No person shall be appointed Member of the Supreme Court or any
lower collegiate court unless he is a natural-born citizen of the Philippines. A
Member of the Supreme Court must be at least forty years of age, and must
have been for fifteen years or more, a judge of a lower court or engaged in the
practice of law in the Philippines.
HOW MUCH MORE in this case. The constitution and statutes did not
mention of any number of years service as a lower court Judge. The only
minimum qualification as to experience or service is the ten(10) years
practice of law in the Philippines. NO ALTERNATIVE. Sec 15, BP 129
provides:
19
Qualifications. No persons shall be appointed Regional Trial Judge unless he is a
natural-born citizen of the Philippines, at least thirty-five years of age, and for at
least ten years, has been engaged in the practice of law in the Philippines or has held
a public office in the Philippines requiring admission to the practice of law as an
indispensable requisite
There was no mention of six years service as Judge in the Lower Court.
Simply put JBC should not have prescribed policy on the qualification of the
applicants.
The respondent JBC is correct nobody has a vested title to the vacant
position. so everybody who meets the minimum qualification should have
been considered and go through the selection process.
20
Petitioners reply:
This is worst than the assailed policy because at least the Lower Court Judge
knows why he / she was disqualified. In the case of private practitioner who
meets the minimum qualification maybe disqualified in whatever grounds
the respondent may think. This is clearly WHIMSICAL, ARBITRARY
AND GRAVE ABUSE OF POWER AND DISCRITION. With all due
respect you can charged the petitioner of GROSS IGNORANCE OF THE
LAW but will never accede to such arguments. To rule otherwise would be to
sanction absurdity and injustice.
The JBC has consistently applied the classification created under the
challenged policy to similar instances in the past and will consistently apply
the challenged policy to similar instances in the future. That is precisely the
reason why the policy has been long standing. If there have been exceptions,
then those pertain to exceptional ones, similar to the instances allowed under
Rule 9 of the rules of the JBC.
Petitioners reply:
What are those exceptional circumstance? The challenged policy was not
even mentioned in JBC Rule 009. How much more its exemption.
Section 1, Article III, of the Constitution states that no person shall be deprived
of property without due process of law. Protected property includes the right to
work and the right to earn a living. In JMM Promotion and Management, Inc. v.
Court of Appeals,[3] the Court held that:
21
A profession, trade or calling is a property right within the meaning
of our constitutional guarantees. One cannot be deprived of the right to
work and the right to make a living because these rights are property
rights, the arbitrary and unwarranted deprivation of which normally
constitutes an actionable wrong. (Emphasis supplied) (Antonio M. Serano
vs. Gallant Maritime Services, Inc. and Marlow Navigation Co. Inc., G.R.
No. 167624)
Moreover, The equal protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the requirements of justice and fair
play. It has been embodied in a separate clause, however, to provide for a more specific
guaranty against any form of undue favoritism or hostility from the government.
Arbitrariness in general may be challenged on the basis of the due process clause. ]
(Louis Barok C. Biraogo, Vs. The Phil Truth Commission of 2010, G.R. No. 192935,
Re Edcel Lagman et.al. vs. Ex. Sec Paquito Ochoa, et.al. ,G.R. No. 193036, Dec7, 2010)
22
The U.S. Supreme Court in the case of Roth v. Board of Regents,[70] sought
to clarify the meaning of liberty. It said:
While the Court has not attempted to define with exactness the liberty. . .
guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not
merely freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God
according to the dictates of his own conscience, and generally to enjoy those
privileges long recognizedas essential to the orderly pursuit of happiness by
free men. In a Constitution for a free people, there can be no doubt that the
meaning of liberty must be broad indeed. (City of Manila, Hon. Alfredo S. Lim
as mayor of Manila, et.al. vs Hon. Perfecto A.S. Laguio Jr., as presiding Judge
RTC, Manila and Malati Tourist Dev. Corpn., G.R. No. 118127. April 12, 2005)
Ones inclusion in the list of candidates is subject to the discretion of the JBC
over the selection of nominees for a particular judicial post.
Reply: It should be clarified the petitioner was not included in the list of
qualified applicants not a list of recommended applicants OR
CANDIDATES. The former refers to candidate for interview by the JBC and
later refers to candidates who passed the selection process to be
recommended to the president.
Section 3. The State shall afford full protection to labor, local and overseas,
23
organized and unorganized, and promote full employment and equality of
employment opportunities for all.
Respondent argues:
There is no law, however, that grants him the right to a promotion to second
level courts.
Again, the petitioner is not asking for immediate promotion to the second
level courts all he wanted is to allow him to go through the process of
selection and be included in the list of applicants to be interviewed, to
undergo written, psychological examination , etc.
PRAYER
3. To order the JBC to implement the R.A. 8557 that only participants
who have completed the programs prescribed by the Academy and
have satisfactorily complied with all the requirements incident thereto
may be appointed or promoted to any position or vacancy in the
Judiciary.
Other reliefs and remedies which are just and equitable under the premises is
likewise prayed.
EXPLANATION
A copy hereof is served on opposing counsel via registered mail due to lack
of time and field personnel, due to the urgency of filing the same with this
Honorable Office, and the distance of the law office of the opposing counsel.
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