CONCURRING AND DISSENTING OPINION

BRION, J.:

The Motions for Reconsideration

After sifting through the motions for reconsideration, I found that the arguments are largely the same arguments that we have passed upon, in one form or another, in the various petitions. Essentially, the issues boil down to justiciability; the conflict of constitutional provisions; the merits of the cited constitutional deliberations; and the status and effect of the Valenzuela^[1] ruling. Even the motion for reconsideration of the Philippine Bar Association (G.R. No. 191420), whose petition I did not expressly touch upon in my Separate Opinion, basically dwells on these issues.

I have addressed most, if not all, of these issues and I submit my Separate Opinion^[2] as my basic response to the motions for reconsideration, supplemented by the discussions below.

As I reflected in my Separate Opinion (which three other Justices joined),^[3] the election appointment ban under Article VII, Section 15 of the Constitution should not apply to the appointment of Members of the Supreme Court whose period for appointment is separately provided for under Article VIII, Section 4(1). I shared this conclusion with the Court's Decision although our reasons differed on some points.

I diverged fully from the Decision on the question of whether we should maintain or reverse our ruling in Valenzuela. I maintained that it is still good law; no reason exists to touch the ruling as its main focus - the application of the election ban on the appointment of lower court judges under Article VIII, Section 9 of the Constitution - is not even an issue in the present case and was discussed only because the petitions incorrectly cited the ruling as authority on the issue of the Chief Justice's appointment. The Decision proposed to reverse Valenzuela but only secured the support of five (5) votes, while my Separate Opinion in support of Valenzuela had four (4) votes. Thus, on the whole, the Decision did not prevail in reversing Valenzuela, as it only had five (5) votes in a field of 12 participating Members of the Court. Valenzuela should therefore remain, as of the filing of this Opinion, as a valid precedent.

Acting on the present motions for reconsideration, I join the majority in denying the motions with respect to the Chief Justice issue, although we differ in some respects on the reasons supporting the denial. I dissent from the conclusion that the Valenzuela ruling should be reversed. My divergence from the majority's reasons and conclusions compels me to write this Concurring and Dissenting Opinion.

The Basic Requisites / Justiciability

One marked difference between the Decision and my Separate Opinion is our approach on the basic requisites/justiciability issues. The Decision apparently glossed over this aspect of the case, while I fully explained why the De Castro^[4] and Peralta^[5] petitions should be dismissed outright. In my view, these petitions violated the most basic requirements of their chosen medium for review - a petition for certiorari and mandamus under Rule 65 of the Rules of Court.

The petitions commonly failed to allege that the Judicial and Bar Council (JBC) performs judicial or quasi-judicial functions, an allegation that the petitions could not really make, since the JBC does not really undertake these functions and, for this reason, cannot be the subject of a petition for certiorari; hence, the petitions should be dismissed outright. They likewise failed to facially show any failure or refusal by the JBC to undertake a constitutional duty to justify the issuance of a writ of mandamus; they invoked judicial notice that we could not give because there was, and is, no JBC refusal to act.^[6] Thus, the mandamus aspects of these petitions should have also been dismissed outright. The ponencia, unfortunately, failed to fully discuss these legal infirmities.

The motions for reconsideration lay major emphasis on the alleged lack of an actual case or controversy that made the Chief Justice's appointment a justiciable issue. They claim that the Court cannot exercise the power of judicial review where there is no clash of legal rights and interests or where this clash is merely anticipated, although the anticipated event shall come with certainty.^[7]

What the movants apparently forgot, focused as they were on their respective petitions, is that the present case is not a single-petition case that rises or falls on the strength of that single petition. The present case involves various petitions and interventions,^[8] not necessarily pulling towards the same direction, although each one is focused on the issue of whether the election appointment ban under Article VII, Section 15 of the Constitution should apply to the appointment of the next Chief Justice of the Supreme Court.

Among the petitions filed were those of Tolentino (G.R. No. 191342), Soriano (G.R. No. 191032) and Mendoza (A.M. No. 10-2-5-SC). The first two are petitions for prohibition under Section 2 of Rule 65 of the Rules of Court.^[9] While they commonly share this medium of review, they differ in their supporting reasons. The Mendoza petition, on the other hand, is totally different - it is a petition presented as an administrative matter (A.M.) in the manner that the Valenzuela case was an A.M. case. As I pointed out in the Separate Opinion, the Court uses the A.M. docket designation on matters relating to its exercise of supervision over all courts and their personnel.^[10] I failed to note then, but I make of record now, that court rules and regulations - the outputs in the Court's rulemaking function - are also docketed as A.M. cases.

That an actual case or controversy involving a clash of rights and interests exists is immediately and patently obvious in the Tolentino and Soriano petitions. At the time the petitions were filed, the JBC had started its six-phase nomination process that would culminate in the submission of a list of nominees to the President of the Philippines for appointive action. Tolentino and Soriano - lawyers and citizens with interest in the strict observance of the election ban - sought to prohibit the JBC from continuing with this process. The JBC had started to act, without any prodding from the Court, because of its duty to start the nomination process but was hampered by the petitions filed and the legal questions raised that only the Supreme Court can settle with finality.^[11] Thus, a clash of interests based on law existed between the petitioners and the JBC. To state the obvious, a decision in favor of Tolentino or Soriano would result in a writ of prohibition that would direct the JBC not to proceed with the nomination process.

The Mendoza petition cited the effect of a complete election ban on judicial appointments (in view of the already high level of vacancies and the backlog of cases) as basis, and submitted the question as an administrative matter that the Court, in the exercise of its supervisory authority over the Judiciary and the JBC itself, should act upon. At the same time, it cited the "public discourse and controversy" now taking place because of the application of the election ban on the appointment of the Chief Justice, pointing in this regard to the very same reasons mentioned in Valenzuela about the need to resolve the issue and avoid the recurrence of conflict between the Executive and the Judiciary, and the need to "avoid polemics concerning the matter."^[12]

I recognized in the Separate Opinion that, unlike in Valenzuela where an outright defiance of the election ban took place, no such obvious triggering event transpired in the Mendoza petition.^[13] Rather, the Mendoza petition looked to the supervisory power of the Court over judicial personnel and over the JBC as basis to secure a resolution of the election ban issue. The JBC, at that time, had indicated its intent to look up to the Court's supervisory power and role as the final interpreter of the Constitution to guide it in responding to the challenges it confronts.^[14] To me, this was "a point no less critical, from the point of view of supervision, than the appointment of the two judges during the election ban period in Valenzuela."^[15]

In making this conclusion, I pointed out in my Separate Opinion the unavoidable surrounding realities evident from the confluence of events, namely: (1) an election to be held on May 10, 2010; (2) the retirement of the Chief Justice on May 17, 2010; (3) the lapse of the terms of the elective officials from the President to the congressmen on June 30, 2010; (4) the delay before the Congress can organize and send its JBC representatives; and (5) the expiration of the term of a non-elective JBC member in July 2010.^[16] All these - juxtaposed with the Court's supervision over the JBC, the latter's need for guidance, and the existence of an actual controversy on the same issues bedeviling the JBC - in my view, were sufficient to save the Mendoza petition from being a mere request for opinion or a petition for declaratory relief that falls under the jurisdiction of the lower court. This recognition is beyond the level of what this Court can do in handling a moot and academic case - usually, one that no longer presents a judiciable controversy but one that can still be ruled upon at the discretion of the court when the constitutional issue is of paramount public interest and controlling principles are needed to guide the bench, the bar and the public.^[17]

To be sure, this approach in recognizing when a petition is actionable is novel. An overriding reason for this approach can be traced to the nature of the petition, as it rests on the Court's supervisory authority and relates to the exercise of the Court's administrative rather than its judicial functions (other than these two functions, the Court also has its rulemaking function under Article VIII, Section 5(5) of the Constitution). Strictly speaking, the Mendoza petition calls for directions from the Court in the exercise of its power of supervision over the JBC,^[18] not on the basis of the power of judicial review.^[19] In this sense, it does not need the actual clash of interests of the type that a judicial adjudication requires. All that must be shown is the active need for supervision to justify the Court's intervention as supervising authority.

Under these circumstances, the Court's recognition of the Mendoza petition was not an undue stretch of its constitutional powers. If the recognition is unusual at all, it is so only because of its novelty; to my knowledge, this is the first time ever in Philippine jurisprudence that the supervisory authority of the Court over an attached agency has been highlighted in this manner. Novelty, per se, however, is not a ground for objection nor a mark of infirmity for as long as the novel move is founded in law. In this case, as in the case of the writ of amparo and habeas data that were then novel and avowedly activist in character, sufficient legal basis exists to actively invoke the Court's supervisory authority - granted under the Constitution, no less - as basis for action.

To partly quote the wording of the Constitution, Article VIII, Section 8(1) and (5) provide that "A Judicial and Bar Council is hereby created under the supervision of the Supreme Court... It may exercise such other functions and duties as the Supreme Court may assign to it." Supervision, as a legal concept, more often than not, is defined in relation with the concept of control.^[20] In Social Justice Society v. Atienza,^[21] we defined "supervision" as follows:

[Supervision] means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer ha[s] done in the performance of his duties and to substitute the judgment of the former for that of the latter.

Under this definition, the Court cannot dictate on the JBC the results of its assigned task, i.e., who to recommend or what standards to use to determine who to recommend. It cannot even direct the JBC on how and when to do its duty, but it can, under its power of supervision, direct the JBC to "take such action or step as prescribed by law to make them perform their duties," if the duties are not being performed because of JBC's fault or inaction, or because of extraneous factors affecting performance. Note in this regard that, constitutionally, the Court can also assign the JBC other functions and duties - a power that suggests authority beyond what is purely supervisory.

Where the JBC itself is at a loss on how to proceed in light of disputed constitutional provisions that require interpretation,^[22] the Court is not legally out of line - as the final authority on the interpretation of the Constitution and as the entity constitutionally-tasked to supervise the JBC - in exercising its oversight function by clarifying the interpretation of the disputed constitutional provision to guide the JBC. In doing this, the Court is not simply rendering a general legal advisory; it is providing concrete and specific legal guidance to the JBC in the exercise of its supervisory authority, after the latter has asked for assistance in this regard. That the Court does this while concretely resolving actual controversies (the Tolentino and Soriano petitions) on the same issue immeasurably strengthens the intrinsic correctness of the Court's action.

It may be asked: why does the Court have to recognize the Mendoza petition when it can resolve the conflict between Article VII, Section 15 and Article VIII, Section 4(1) through the Tolentino and Soriano petitions?

The answer is fairly simple and can be read between the lines of the above explanation on the relationship between the Court and the JBC. First, administrative is different from judicial function and providing guidance to the JBC can only be appropriate in the discharge of the Court's administrative function. Second, the resolution of the Tolentino and Soriano petitions will lead to rulings directly related to the underlying facts of these petitions, without clear guidelines to the JBC on the proper parameters to observe vis-à-vis the constitutional dispute along the lines the JBC needs. In fact, concrete guidelines addressed to the JBC in the resolution of the Tolentino/Soriano petitions may even lead to accusations that the Court's resolution is broader than is required by the facts of the petitions. The Mendoza petition, because it pertains directly to the performance of the JBC's duty and the Court's supervisory authority, allows the issuance of precise guidelines that will enable the JBC to fully and seasonably comply with its constitutional mandate.

I hasten to add that the JBC's constitutional task is not as simple as some people think it to be. The process of preparing and submitting a list of nominees is an arduous and time-consuming task that cannot be done overnight. It is a six-step process lined with standards requiring the JBC to attract the best available candidates, to examine and investigate them, to exhibit transparency in all its actions while ensuring that these actions conform to constitutional and statutory standards (such as the election ban on appointments), to submit the required list of nominees on time, and to ensure as well that all these acts are politically neutral. On the time element, the JBC list for the Supreme Court has to be submitted on or before the vacancy occurs given the 90-day deadline that the appointing President is given in making the appointment. The list will be submitted, not to the President as an outgoing President, nor to the election winner as an incoming President, but to the President of the Philippines whoever he or she may be. If the incumbent President does not act on the JBC list within the time left in her term, the same list shall be available to the new President for him to act upon. In all these, the Supreme Court bears the burden of overseeing that the JBC's duty is done, unerringly and with utmost dispatch; the Court cannot undertake this supervision in a manner consistent with the Constitution's expectation from the JBC unless it adopts a pro-active stance within the limits of its supervisory authority.

The Disputed Provisions

The movants present their arguments on the main issue at several levels. Some argue that the disputed constitutional provisions - Article VII, Section 15 and Article VIII, Section 4(1) - are clear and speak for themselves on what the Constitution covers in banning appointments during the election period.^[23] One even posits that there is no conflict because both provisions can be given effect without one detracting against the full effectiveness of the other,^[24] although the effect is to deny the sitting President the option to appoint in favor of a deferment for the incoming President's action. Still others, repeating their original arguments, appeal to the principles of interpretation and latin maxims to prove their point.^[25]

In my discussions in the Separate Opinion, I stated upfront my views on how the disputed provisions interact with each other. Read singly and in isolation, they appear clear (this reading applies the "plain meaning rule" that Tolentino advocates in his motion for reconsideration, as explained below). Arrayed side by side with each other and considered in relation with the other provisions of the Constitution, particularly its structure and underlying intents, the conflict however becomes obvious and unavoidable.

Section 15 on its face disallows any appointment in clear negative terms ("shall not make") without specifying the appointments covered by the prohibition.^[26] From this literal and isolated reading springs the argument that no exception is provided (except that found in Section 15 itself) so that even the Judiciary is covered by the ban on appointments.

On the other hand, Section 4(1) is likewise very clear and categorical in its terms: any vacancy in the Court shall be filled within 90 days from its occurrence.^[27] In the way of Section 15, Section 4(1) is also clear and categorical and provides no exception; the appointment refers solely to the Members of the Supreme Court and does not mention any period that would interrupt, hold or postpone the 90-day requirement.

From this perspective, the view that no conflict exists cannot be seriously made, unless with the mindset that one provision controls and the other should yield. Many of the petitions in fact advocate this kind of reading, some of them openly stating that the power of appointment should be reserved for the incoming President.^[28] The question, however, is whether - from the viewpoint of strict law and devoid of the emotionalism and political partisanship that permeate the present Philippine political environment - this kind of mindset can really be adopted in reading and applying the Constitution.

In my view, this kind of mindset and the conclusion it inevitably leads to cannot be adopted; the provisions of the Constitution cannot be read in isolation from what the whole contains. To be exact, the Constitution must be read and understood as a whole, reconciling and harmonizing apparently conflicting provisions so that all of them can be given full force and effect,^[29] unless the Constitution itself expressly states otherwise.^[30]

Not to be forgotten in reading and understanding the Constitution are the many established underlying constitutional principles that we have to observe and respect if we are to be true to the Constitution. These principles - among them the principles of checks and balances and separation of powers - are not always expressly stated in the Constitution, but no one who believes in and who has studied the Constitution can deny that they are there and deserve utmost attention, respect, and even priority consideration.

In establishing the structures of government, the ideal that the Constitution seeks to achieve is one of balance among the three great departments of government - the Executive, the Legislative and the Judiciary, with each department undertaking its constitutionally-assigned task as a check against the exercise of power by the others, while all three departments move forward in working for the progress of the nation. Thus, the Legislature makes the laws and is supreme in this regard, in the way that the Executive is supreme in enforcing and administering the law, while the Judiciary interprets both the Constitution and the law. Any provision in each of the Articles on these three departments^[31] that intrudes into the other must be closely examined if the provision affects and upsets the desired balance.

Under the division of powers, the President as Chief Executive is given the prerogative of making appointments, subject only to the legal qualification standards, to the checks provided by the Legislature's Commission on Appointments (when applicable) and by the JBC for appointments in the Judiciary, and to the Constitution's own limitations. Conflict comes in when the Constitution laid down Article VII, Section 15 limiting the President's appointing power during the election period. This limitation of power would have been all-encompassing and would, thus, have extended to all government positions the President can fill, had the Constitution not inserted a provision, also on appointments, in the Article on the Judiciary with respect to appointments to the Supreme Court. This conflict gives rise to the questions: which provision should prevail, or should both be given effect? Or should both provisions yield to a higher concern - the need to maintain the integrity of our elections?

A holistic reading of the Constitution - a must in constitutional interpretation - dictates as a general rule that the tasks assigned to each department and their limitations should be given full effect to fulfill the constitutional purposes under the check and balance principle, unless the Constitution itself expressly indicates its preference for one task, concern or standard over the others,^[32] or unless this Court, in its role as interpreter of the Constitution, has spoken on the appropriate interpretation that should be made.^[33]

In considering the interests of the Executive and the Judiciary, a holistic approach starts from the premise that the constitutional scheme is to grant the President the power of appointment, subject to the limitation provided under Article VII, Section 15. At the same time, the Judiciary is assured, without qualifications under Article VIII, Section 4(1), of the immediate appointment of Members of the Supreme Court, i.e., within 90 days from the occurrence of the vacancy. If both provisions would be allowed to take effect, as I believe they should, the limitation on the appointment power of the President under Article VII, Section 15 should itself be limited by the appointment of Members of the Court pursuant to Article VIII, Section 4(1), so that the provision applicable to the Judiciary can be given full effect without detriment to the President's appointing authority. This harmonization will result in restoring to the President the full authority to appoint Members of the Supreme Court pursuant to the combined operation of Article VII, Section 15 and Article VIII, Section 4(1).

Viewed in this light, there is essentially no conflict, in terms of the authority to appoint, between the Executive and Judiciary; the President would effectively be allowed to exercise the Executive's traditional presidential power of appointment while respecting the Judiciary's own prerogative. In other words, the President retains full powers to appoint Members of the Court during the election period, and the Judiciary is assured of a full membership within the time frame given.

Interestingly, the objection to the full application of Article VIII, Section 4(1) comes, not from the current President, but mainly from petitioners echoing the present presidential candidates, one of whom shall soon be the incoming President. They do not, of course, cite reasons of power and the loss of the opportunity to appoint the Chief Justice; many of the petitioners/intervenors oppose the full application of Article VIII, Section 4(1) based on the need to maintain the integrity of the elections through the avoidance of a "midnight appointment."

This "integrity" reason is a given in a democracy and can hardly be opposed on the theoretical plane, as the integrity of the elections must indeed prevail in a true democracy. The statement, however, begs a lot of questions, among them the question of whether the appointment of a full Court under the terms of Article VIII, Section 4(1) will adversely affect or enhance the integrity of the elections.

In my Separate Opinion, I concluded that the appointment of a Member of the Court even during the election period per se implies no adverse effect on the integrity of the election; a full Court is ideal during this period in light of the Court's unique role during elections. I maintain this view and fully concur in this regard with the majority.

During the election period, the court is not only the interpreter of the Constitution and the election laws; other than the Commission on Elections and the lower courts to a limited extent, the Court is likewise the highest impartial recourse available to decisively address any problem or dispute arising from the election. It is the leader and the highest court in the Judiciary, the only one of the three departments of government directly unaffected by the election. The Court is likewise the entity entrusted by the Constitution, no less, with the gravest election-related responsibilities. In particular, it is the sole judge of all contests in the election of the President and the Vice-President, with leadership and participation as well in the election tribunals that directly address Senate and House of Representatives electoral disputes. With this grant of responsibilities, the Constitution itself has spoken on the trust it reposes on the Court on election matters. This reposed trust, to my mind, renders academic any question of whether an appointment during the election period will adversely affect the integrity of the elections - it will not, as the maintenance of a full Court in fact contributes to the enforcement of the constitutional scheme to foster a free and orderly election.

In reading the motions for reconsideration against the backdrop of the partisan political noise of the coming elections, one cannot avoid hearing echoes from some of the arguments that the objection is related, more than anything else, to their lack of trust in an appointment to be made by the incumbent President who will soon be bowing out of office. They label the incumbent President's act as a "midnight appointment" - a term that has acquired a pejorative meaning in contemporary society.

As I intimated in my Separate Opinion, the imputation of distrust can be made against any appointing authority, whether outgoing or incoming. The incoming President himself will be before this Court if an election contest arises; any President, past or future, would also naturally wish favorable outcomes in legal problems that the Court would resolve. These possibilities and the potential for continuing influence in the Court, however, cannot be active considerations in resolving the election ban issue as they are, in their present form and presentation, all speculative. If past record is to be the measure, the record of past Chief Justices and of this Court speaks for itself with respect to the Justices' relationship with, and deferral to, the appointing authority in their decisions.

What should not be forgotten in examining the records of the Court, from the prism of problems an electoral exercise may bring, is the Court's unique and proven capacity to intervene and diffuse situations that are potentially explosive for the nation. EDSA II particularly comes to mind in this regard (although it was an event that was not rooted in election problems) as it is a perfect example of the potential for damage to the nation that the Court can address and has addressed. When acting in this role, a vacancy in the Court is not only a vote less, but a significant contribution less in the Court's deliberations and capacity for action, especially if the missing voice is the voice of the Chief Justice.

Be it remembered that if any EDSA-type situation arises in the coming elections, it will be compounded by the lack of leaders because of the lapse of the President's term by June 30, 2010; by a possible failure of succession if for some reason the election of the new leadership becomes problematic; and by the similar absence of congressional leadership because Congress has not yet convened to organize itself.^[34] In this scenario, only the Judiciary of the three great departments of government stands unaffected by the election and should at least therefore be complete to enable it to discharge its constitutional role to its fullest potential and capacity. To state the obvious, leaving the Judiciary without any permanent leader in this scenario may immeasurably complicate the problem, as all three departments of government will then be leaderless.

To stress what I mentioned on this point in my Separate Opinion, the absence of a Chief Justice will make a lot of difference in the effectiveness of the Court as he or she heads the Judiciary, sits as Chair of the JBC and of the Presidential Electoral Tribunal, presides over impeachment proceedings, and provides the moral suasion and leadership that only the permanent mantle of the Chief Justice can bestow. EDSA II is just one of the many lessons from the past when the weightiest of issues were tackled and promptly resolved by the Court. Unseen by the general public in all these was the leadership that was there to ensure that the Court would act as one, in the spirit of harmony and stability although divergent in their individual views, as the Justices individually make their contributions to the collegial result. To some, this leadership may only be symbolic, as the Court has fully functioned in the past even with an incomplete membership or under an Acting Chief Justice. But as I said before, an incomplete Court "is not a whole Supreme Court; it will only be a Court with 14 members who would act and vote on all matters before it." To fully recall what I have said on this matter:

The importance of the presence of one Member of the Court can and should never be underestimated, particularly on issues that may gravely affect the nation. Many a case has been won or lost on the basis of one vote. On an issue of the constitutionality of a law, treaty or statute, a tie vote - which is possible in a 14 member court - means that the constitutionality is upheld. This was our lesson in Isagani Cruz v. DENR Secretary.

More than the vote, Court deliberation is the core of the decision-making process and one voice is less is not only a vote less but a contributed opinion, an observation, or a cautionary word less for the Court. One voice can be a big difference if the missing voice is that of the Chief Justice.

Without meaning to demean the capability of an Acting Chief Justice, the ascendancy in the Court of a permanent sitting Chief Justice cannot be equaled. He is the first among equals - a primus inter pares - who sets the tone for the Court and the Judiciary, and who is looked up to on all matters, whether administrative or judicial. To the world outside the Judiciary, he is the personification of the Court and the whole Judiciary. And this is not surprising since, as Chief Justice, he not only chairs the Court en banc, but chairs as well the Presidential Electoral Tribunal that sits in judgment over election disputes affecting the President and the Vice-President. Outside of his immediate Court duties, he sits as Chair of the Judicial and Bar Council, the Philippine Judicial Academy and, by constitutional command, presides over the impeachment of the President. To be sure, the Acting Chief Justice may be the ablest, but he is not the Chief Justice without the mantle and permanent title of the Office, and even his presence as Acting Chief Justice leaves the Court with one member less. Sadly, this member is the Chief Justice; even with an Acting Chief Justice, the Judiciary and the Court remains headless. ^[35]

Given these views, I see no point in re-discussing the finer points of technical interpretation and their supporting latin maxims that I have addressed in my Separate Opinion and now feel need no further elaboration; maxims can be found to serve a pleader's every need and in any case are the last interpretative tools in constitutional interpretation. Nor do I see any point in discussing arguments based on the intent of the framers of the Constitution now cited by the parties in the contexts that would serve their own ends. As may be evident in these discussions, other than the texts of the disputed provisions, I prefer to examine their purposes and the consequences of their application, understood within the context of democratic values. Past precedents are equally invaluable for the lead, order, and stability they contribute, but only if they are in point, certain, and still alive to current realities, while the history of provisions, including the intents behind them, are primarily important to ascertain the purposes the provisions serve.

From these perspectives and without denigrating the framers' historical contributions, I say that it is the Constitution that now primarily speaks to us in this case and what we hear are its direct words, not merely the recorded isolated debates reflecting the personal intents of the constitutional commissioners as cited by the parties to fit their respective theories. The voice speaking the words of the Constitution is our best guide, as these words will unalterably be there for us to read in the context of their purposes and the nation's needs and circumstances. This Concurring and Dissenting Opinion hears and listens to that voice.

The Valenzuela Decision

The ponencia's ruling reversing Valenzuela, in my view, is out of place in the present case, since at issue here is the appointment of the Chief Justice during the period of the election ban, not the appointment of lower court judges that Valenzuela resolved. To be perfectly clear, the conflict in the constitutional provisions is not confined to Article VII, Section 15 and Article VIII, Section 4(1) with respect to the appointment of Members of the Supreme Court; even before the Valenzuela ruling, the conflict already existed between Article VII, Section 15 and Article VIII, Section 9 - the provision on the appointment of the justices and judges of courts lower than the Supreme Court. After this Court's ruling in Valenzuela, no amount of hairsplitting can result in the conclusion that Article VII, Section 15 applied the election ban over the whole Judiciary, including the Supreme Court, as the facts and the fallo of Valenzuela plainly spoke of the objectionable appointment of two Regional Trial Court judges. To reiterate, Valenzuela only resolved the conflict between Article VII, Section 15 and appointments to the Judiciary under Article VIII, Section 9.

If Valenzuela did prominently figure at all in the present case, the prominence can be attributed to the petitioners' mistaken reading that this case is primary authority for the dictum that Article VII, Section 15 completely bans all appointments to the Judiciary, including appointments to the Supreme Court, during the election period up to the end of the incumbent President's term.

In reality, this mistaken reading is an obiter dictum in Valenzuela, and hence, cannot be cited for its primary precedential value. This legal situation still holds true as Valenzuela was not doctrinally reversed as its proposed reversal was supported only by five (5) out of the 12 participating Members of the Court. In other words, this ruling on how Article VII, Section 15 is to be interpreted in relation with Article VIII, Section 9, should continue to stand unless otherwise expressly reversed by this Court.

But separately from the mistaken use of an obiter ruling as primary authority, I believe that I should sound the alarm bell about the Valenzuela ruling in light of a recent vacancy in the position of Presiding Justice of the Sandiganbayan resulting from Presiding Justice Norberto Geraldez's death soon after we issued the decision in the present case. Reversing the Valenzuela ruling now, in the absence of a properly filed case addressing an appointment at this time to the Sandiganbayan or to any other vacancy in the lower courts, will be an irregular ruling of the first magnitude by this Court, as it will effectively be a shortcut that lifts the election ban on appointments to the lower courts without the benefit of a case whose facts and arguments would directly confront the continued validity of the Valenzuela ruling. This is especially so after we have placed the Court on notice that a reversal of Valenzuela is uncalled for because its ruling is not the litigated issue in this case.

In any case, let me repeat what I stressed in my Separate Opinion about Valenzuela which rests on the reasoning that the evils Section 15 seeks to remedy - vote buying, midnight appointments and partisan reasons to influence the elections - exist, thus justifying an election appointment ban. In particular, the "midnight appointment" justification, while fully applicable to the more numerous vacancies at the lower echelons of the Judiciary (with an alleged current lower court vacancy level of 537 or a 24.5% vacancy rate), should not apply to the Supreme Court which has only a total of 15 positions that are not even vacated at the same time. The most number of vacancies for any one year occurred only last year (2009) when seven (7) positions were vacated by retirement, but this vacancy rate is not expected to be replicated at any time within the next decade. Thus "midnight appointments" to the extent that they were understood in Aytona^[36] will not occur in the vacancies of this Court as nominations to its vacancies are all processed through the JBC under the public's close scrutiny. As already discussed above, the institutional integrity of the Court is hardly an issue. If at all, only objections personal to the individual Members of the Court or against the individual applicants can be made, but these are matters addressed in the first place by the JBC before nominees are submitted. There, too, are specific reasons, likewise discussed above, explaining why the election ban should not apply to the Supreme Court. These exempting reasons, of course, have yet to be shown to apply to the lower courts. Thus, on the whole, the reasons justifying the election ban in Valenzuela still obtain in so far as the lower courts are concerned, and have yet to be proven otherwise in a properly filed case. Until then, Valenzuela, except to the extent that it mentioned Section 4(1), should remain an authoritative ruling of this Court.

CONCLUSION

In light of these considerations, a writ of prohibition cannot issue to prevent the JBC from performing its principal function, under the Constitution, of recommending nominees for the position of Chief Justice. Thus, I vote to deny with finality the Tolentino and Soriano motions for reconsideration.

The other motions for reconsideration in so far as they challenge the conclusion that the President can appoint the Chief Justice even during the election period are likewise denied with finality for lack of merit, but are granted in so far as they support the continued validity of the ruling of this Court in In Re: Valenzuela and Vallarta, A.M. No. 98-5-01-SC, November 9, 1998.

My opinion on the Mendoza petition stands.

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^[1] A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408. This A.M. involves the constitutional validity of the appointment of two (2) RTC Judges on March 30, 1998 - a date that falls within the supposed ban under Section 15, Article VII of the Constitution. We nullified the appointments.

^[2] G.R. No. 191002 and companion cases, promulgated on March 17, 2010.

^[3] Justices Diosdado M. Peralta, Mariano C. Del Castillo and Jose Catral Mendoza.

^[4] G.R. No. 191002, Petition for Certiorari and Mandamus.

^[5] G.R. No. 191149, Petition for Certiorari and Mandamus.

^[6] The JBC reiterates its position in its Comment (dated April 12, 2010) on the motions for reconsideration that it is still acting on the preparation of the list of nominees and is set to interview the nominees.

^[7] See, for instance, the motion for reconsideration of intervenor Alfonso Tan, Jr.

^[8] The docketed petitions were seven; the petitions-in-intervention were ten.

^[9] A prohibition petition seeks to stop the proceedings of a tribunal, corporation, board, officer or person exercising judicial, quasi-judicial or ministerial functions if any of its act is without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.

^[10] Separate Opinion, p. 16.

^[11] The JBC position states:

x x x x

Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper appointing authority, in light of Section 4(1), Article VIII of the Constitution, which provides that vacancy in the Supreme Court shall be filled within ninety (90) days from the occurrence thereof, Section 15, Article VII of the Constitution concerning the ban on Presidential appointments "two (2) months immediately before the next presidential elections and up to the end of his term" and Section 261(g), Article XXIII of the Omnibus Election Code of the Philippines.

12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the JBC will be guided by its decision in these consolidated Petitions and Administrative Matter. [Emphasis supplied.]

^[12] Mendoza Petition, pp. 5-6.

^[13] Separate Opinion, pp. 16-17.

^[14] Supra note 11.

^[15] Id. at 17.

^[16] Separate Opinion, pp. 19-22:

A first reality is that the JBC cannot, on its own due to lack of the proper authority, determine the appropriate course of action to take under the Constitution. Its principal function is to recommend appointees to the Judiciary and it has no authority to interpret constitutional provisions, even those affecting its principal function; the authority to undertake constitutional interpretation belongs to the courts alone.

A second reality is that the disputed constitutional provisions do not stand alone and cannot be read independently of one another; the Constitution and its various provisions have to be read and interpreted as one seamless whole, giving sufficient emphasis to every aspect in accordance with the hierarchy of our constitutional values. The disputed provisions should be read together and, as reflections of the will of the people, should be given effect to the extent that they should be reconciled.

The third reality, closely related to the second, is that in resolving the coverage of the election ban vis-à-vis the appointment of the Chief Justice and the Members of the Court, provisions of the Constitution other than the disputed provisions must be taken into account. In considering when and how to act, the JBC has to consider that:

1. The President has a term of six years which begins at noon of June 30 following the election, which implies that the outgoing President remains President up to that time. (Section 4, Article VII). The President assumes office at the beginning of his or her term, with provision for the situations where the President fails to qualify or is unavailable at the beginning of his term (Section 7, Article VII).

2. The Senators and the Congressmen begin their respective terms also at midday of June 30 (Sections 4 and 7, Article VI). The Congress convenes on the 4^th Monday of July for its regular session, but the President may call a special session at any time. (Section 15, Article VI)

3. The Valenzuela case cited as authority for the position that the election ban provision applies to the whole Judiciary, only decided the issue with respect to lower court judges, specifically, those covered by Section 9, Article VIII of the Constitution. Any reference to the filling up of vacancies in the Supreme Court pursuant to Section 4(1), Article VIII constitutes obiter dictum as this issue was not directly in issue and was not ruled upon.

These provisions and interpretation of the Valenzuela ruling - when read together with disputed provisions, related with one another, and considered with the May 17, 2010 retirement of the current Chief Justice - bring into focus certain unavoidable realities, as follows:

1. If the election ban would apply fully to the Supreme Court, the incumbent President cannot appoint a Member of the Court beginning March 10, 2010, all the way up to June 30, 2010.

2. The retirement of the incumbent Chief Justice - May 17, 2010 - falls within the period of the election ban. (In an extreme example where the retirement of a Member of the Court falls on or very close to the day the election ban starts, the Office of the Solicitor General calculates in its Comment that the whole 90 days given to the President to make appointment would be covered by the election ban.)

3. Beginning May 17, 2010, the Chief Justice position would be vacant, giving rise to the question of whether an Acting Chief Justice can act in his place. While this is essentially a Supreme Court concern, the Chief Justice is the ex officio Chair of the JBC; hence it must be concerned and be properly guided.

4. The appointment of the new Chief Justice has to be made within 90 days from the time the vacancy occurs, which translates to a deadline of August 15, 2010.

5. The deadline for the appointment is fixed (as it is not reckoned from the date of submission of the JBC list, as in the lower courts) which means that the JBC ideally will have to make its list available at the start of the 90-day period so that its process will not eat up the 90-day period granted the President.

6. After noon of June 30, 2010, the JBC representation from Congress would be vacant; the current representatives' mandates to act for their principals extend only to the end of their present terms; thus, the JBC shall be operating at that point at less than its full membership.

7. Congress will not convene until the 4^th Monday of July, 2010, but would still need to organize before the two Houses of Congress can send their representatives to the JBC - a process may extend well into August, 2010.

8. By July 5, 2010, one regular member of the JBC would vacate his post. Filling up this vacancy requires a presidential appointment and the concurrence of the Commission on Appointments.

9. Last but not the least, the prohibition in Section 15, Article VII is that "a President or Acting President shall not make appointments." This prohibition is expressly addressed to the President and covers the act of appointment; the prohibition is not against the JBC in the performance of its function of "recommending appointees to the Judiciary" - an act that is one step away from the act of making appointments.

^[17] The Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel Ancestral Domain, G.R. Nos. 183591, 183791, 183752, 183893, 183951 and 183962, October 14, 2008.

^[18] By virtue of its power of administrative supervision, the Supreme Court oversees the judges' and court personnel's compliance with the laws, rules and regulations. It may take the proper administrative action against them if they commit any violation. See Ampong v. CSC, G.R. No. 107910, August 26, 2008, 563 SCRA 293. The Constitution separately provides for the Supreme Court's supervision over the JBC. See Article VIII, Section 8 of the CONSTITUTION.

^[19] Judicial Review is the power of the courts to test the validity of executive and legislative acts for their conformity with the Constitution, Garcia v. Executive Secretary, G.R. No. 157584, April 2, 2009.

^[20] Control is the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. It is distinguished from supervision in that the latter means overseeing, or the power or authority of an officer to see that subordinate officers perform their duties, and if the latter fail or neglect to fulfill them, then the former may take such action or steps as prescribed by law to make them perform these duties. Nachura, J., Outline Reviewer in Political Law, 2006 ed., p. 276.

^[21] G.R. No. 156052, February 13, 2008, 545 SCRA 92.

^[22] Supra notes 11 and 14.

^[23] Philippine Bar Association (PBA), Women Trial Lawyers Organization of the Philippines (WTLOP), Atty. Amador Z. Tolentino, Atty. Roland B. Inting, Peter Irving Corvera and Alfonso V. Tan, Jr.

^[24] See PBA's Motion for Reconsideration.

^[25] See the Motions for Reconsideration for PBA, WTLOP, Atty. Amador Z. Tolentino, Atty. Roland B. Inting, Peter Irving Corvera and Alfonso V. Tan, Jr.

^[26] CONSTITUTION, Article VII, Section 15:

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.

^[27] CONSTITUTION, Article VIII, Section 4(1):

(1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or, in its discretion, in divisions of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.

x x x x

^[28] See Petition on Intervention of WTLOP, as cited in the decision in the above-captioned cases; see also: PBA's motion for reconsideration.

^[29] Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, citing Civil Liberties Union v. Executive Secretary, 194 SCRA 317 (1994); Peralta v. Commission on Elections, G.R. No. 47771, March 11, 1978, 82 SCRA 30 (1978); Ang-Angco v. Castillo, G.R. No. 17169, November 30, 1963, 9 SCRA 619 (1963).

^[30] Macalintal v. Commission on Elections, G.R. No. 157013, July 10, 2003, 310 SCRA 614, citing Chiongbian v. De Leon, 82 Phil 771 (1949).

^[31] Article VI for the Legislature, Article VII for the Executive, and Article VIII for the Judiciary.

^[32] See Matibag v. Benipayo, G.R. No. 149036, April 2, 2002, 380 SCRA 49; where the court resolved the clash between the power of the President to extend ad interim appointments and the power of the Commission on Appointments to confirm presidential appointments.

^[33] Ibid.

^[34] Supra note 13.

^[35] Separate Opinion, p. 32.

^[36] Aytona v. Castillo, G.R. No. 19315, January 19, 1962, 4 SCRA 1.