For legal research purposes of the visitors of this blog, in the pending case of JAIME N. SORIANO VS. JUDICIAL AND BAR COUNCIL, G.R. No. 191032, with companion cases, where various motions for reconsiderations have been filed by concerned parties seeking the reversal of the controversial (and much-hated) decision of the Supreme Court allowing the President to appoint the next Chief Justice within the 2-month appointment-ban period, notwithstanding the express provisions of Art. VII of the 1987 Constitution to the contrary, one of the parties, Atty. J. N. Soriano, a law professor, has argued as follows in his motion for reconsideration, thus:
MOTION FOR RECONSIDERATION
AND A FULL COURT DELIBERATION
SANS RECLUSE
PETITIONER, also acting as counsel for himself, most respectfully moves for a
reconsideration of the 17 March 2010 Decision of this Honorable Court in the
above-captioned cases, a copy of which he received on 18 March 2010, and states:
Opening Statement
In resolving the constitutional issues in these consolidated cases involving the
designation of the next Chief Justice of the Philippines, the independence and
integrity of the judiciary as a separate branch of government is significantly at
stake.
It is axiomatic that the letter of the Constitution is what the Supreme Court says
it is. This most Honorable Court may set aside all the motions for reconsideration
filed and to be filed by the parties herein for sheer lack of merit and sustain with
finality the majority opinion penned by Mr. Justice Bersamin to the effect that the
incumbent President has the power the appoint the Chief Justice, within the two
month period following the 10 May 2010 elections, as an exception to Section 15,
Article VII of the Constitution. It may also reverse itself and decide to uphold
the constitutional prohibition consistent with the ruling in Valenzuela. Or it may
choose to adopt the submission of herein petitioner and hold that the contending
issues on the presidential prerogative are moot because the power to designate
the Chief Justice is lodged to the Supreme Court en banc, and not to the President,
following Section 5 (6), Article VIII of the Constitution. Whatever constitutional
route it takes, this Honorable Court would surely find legal bases to support its
final decision.
Given these three constitutional options, petitioner most humbly and
respectfully pleads before this Honorable Court to adopt a final opinion or
interpretation that would keep and advance the sanctity of its judicial
independence and integrity - for it is by these attributes that democracy lives and
remains vibrant, especially in times when the Executive and Legislative Branches
of government fail in the discharge of their constitutional mandate.
Perhaps, this Honorable Court may find some relevance in the disquisition of
former US Chief Justice John Marshall in the 1819 landmark case of McCulloch v.
Maryland1 when he wrote:
"We must never forget that it is a constitution we are expounding . . .
to endure for ages to come, and, consequently, to be adapted to the
various crises of human affairs . . . on which the welfare of a nation
essentially depends."
With all humility and in all modesty, the thesis that herein petitioner is
presenting before this Honorable Court is founded on a lofty constitutional
opportunity to assert the independence and integrity of the judiciary.
Petitioner concedes that his position appears to be a lonely constitutional
crusade. But he is not yielding. Never again should the Supreme Court be
referred as the Marcos Supreme Court or the Arroyo Supreme Court in the bar
of public opinion. Never again should the designation of the Chief Justice be
hounded by political consideration and brickbat. For sure, the framers of the
Constitution intended this Honorable Court to be just The Supreme Court of
the Filipino people.
This Honorable Court has the constitutional authority to designate its own Chief
Justice in accordance with the fundamental law. It may opt to simply brush it
aside or it may choose to re-define the course of judicial history by pursuing the
path of judicial independence consistent with the tenets of separation of powers.
Petitioner acknowledges that the bar of public opinion has no room, has no
weight, every time this Honorable Court renders a judgment, particularly on
constitutional issues of transcendental importance in the life of our nation.
The Legislature and the Executive Department may falter but there is the
mechanism of popular election that would hold them publicly accountable. But
when the Supreme Court, through the might of its pen, miscarries in the prying
eyes of public opinion, judicial independence and integrity suffer. Constitutional
democracy is then put at risk. In the performance of its constitutional duties, the
Supreme Court cannot shy away from the principle that sovereignty resides in
the people. Vox populi, vox Dei even if it is the Supreme Court that speaks.
Thomas Jefferson put it aptly when he said of the US Judiciary2:
“A judiciary independent of a king or executive alone is a good thing; but
independence of the will of the nation is a solecism, at least in a republican
government."
Petitioner dreams of a truly independent judiciary founded on its own judicial
integrity. This is the motivation of the petitioner when he initiated this suit and
this is also the context of this motion for reconsideration in G. R. No. 191032.
Grounds and Arguments in Support of this Relief for Reconsideration
1. The constitutional issue raised by herein petitioner, whether or not the power
to designate the Chief Justice belongs to the Supreme Court en banc under the
Constitution, was not squarely ruled upon or addressed by this Honorable
Court.
In his ponencia, Mr. Justice Bersamin put the issues to be resolved by this
Honorable Court in this wise:
“Accordingly, we reframe the issues as submitted by each petitioner in
the order of the chronological filing of their petitions.
x x x x x x
G. R. No. 191032
a. Is the power to appoint the Chief Justice vested in the Supreme
Court en banc?
x x x x x x3”
Except to say that “(A) review of Sections 4 (1) and 9 of Article VIII shows that
the Supreme Court is composed of a Chief Justice and 14 Associate Justices, who
all shall be appointed by the President4 from a list of at least three nominees
prepared by the JBC for every vacancy, which appointments require no
confirmation by the Commission on Appointments”, this Honorable Court, with
all due respect, did not belabor to elucidate why the sole issue raised in G. R. No.
191032 lacked merit.
Petitioner, again with all due respect, submits that the constitutional ground
raised originally in his petition and now reiterated in this motion for
reconsideration necessitates a categorical judicial determination in the light of the
Section 5 (6), Article VIII of the Constitution which says that the Supreme Court
shall have the power “(T)o appoint all officials x x x of the judiciary x x x”. As
a matter of judicial policy, “(N)o decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on which it is
based”.
2. The position of Chief Justice falls within the ambit of the constitutional powers
of the Supreme Court under Section 5 (6), and not within the presidential
prerogative conferred in Section 9, both of Article VIII of the Constitution.
Even if the majority opinion did not actually provide an extensive explanation in
ruling against petitioner's submission, the separate concurring opinion of Mr.
Justice Brion could probably supply that inadequacy and what this Honorable
Court had in mind when it dealt with petitioner's submission. He wrote:
“The Soriano petition presents a very novel interpretation of Section 9,
Article VIII in its position that the authority to appoint the Chief
Justice is lodged in the Court, not the President.
The correctness of this reading of the law is contradicted by both
history and by the law itself.
History tells us that, without exception, the Chief Justice of the
Supreme Court has always been appointed by the head of the
Executive Department. Thus, Chief Justices Cayetano Arellano x x x
and all the Chief Justices after Philippine independence by the Chief
Executive. The only difference in their respective appointments is the
sovereignty under which they were appointed.
x x x x x x
The use of the generic term “Members of the Supreme Court” under
Section 9, Article VIII in delineating the appointing authority under
the 1987 Constitution, is not new. This was the term used in the
present line of Philippine Constitution, from 1935 to 1987, and the
inclusion of the Chief Justice with the general term “Member of the
Court” has never been in doubt. [citing Vargas vs. Rilloraza, 80 Phil.
297, 342 (1948)] In fact, Section 4 (1) of the present Constitution itself
confirms that the Chief Justice is a Member of the Court x x x.
Thus, both by law and history, the Chief Justice has always been a
Member of the Court – although as primus inter pares – appointed by
the President together with every other Associate Justice. For this
reason, we should dismiss the Soriano petition for lack of merit.”
This is almost the same constitutional reasoning that the Office of the Solicitor-
General took when it filed its Comment on 26 February 2010 and that of the
Women Trial Lawyers Organization of the Philippines (WTLOP) when it filed its
petition in intervention.
To put the thesis of petitioner in a proper legal setting, below are the pertinent
provisions of the Constitution relevant to this discussion.
SECTION 16, ARTICLE VII: “The President shall nominate and, with
the consent of the Commission on Appointments, appoint the heads of
the executive department, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in
him in this Constitution. He shall also appoint all other officers of the
Government whose appointment are not otherwise provided for by
law , and those whom he may be authorized by law to appoint. The
Congress may, by law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards. x x x” (underscoring
and emphasis supplied)
SECTION 4 (1), ARTICLE VIII: “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. (emphasis supplied)
SECTION 5 (6), ARTICLE VIII: “The Supreme Court shall have the
following powers:
x x x x x x
(6) Appoint all officials and employees of the judiciary in accordance
with the Civil Service Law.” (underscoring and emphasis supplied)
SECTION 9, ARTICLE VIII: “ The Members of the Supreme Court
and judges of lower courts shall be appointed by the President from a
list of at least three nominees prepared by the Judicial and Bar Council
for every vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments within
ninety days from the submission of the list.”
Given the reasoning of Mr. Justice Brion in his separate opinion, petitioner is of
the humble but strong view that the there is a constitutional clash between the
power of the Supreme Court to appoint ALL ITS OFFICIALS under Section 5
(6) and the presidential power to appoint the MEMBERS OF THE SUPREME
COURT under Section 9.
The present stand of this Honorable Court seems to surrender or yield its
express constitutional authority under Section 5 (6) in favor of the President on
the basis of constitutional history and long-years of perceived judicial
tradition.
With all due respect to Mr. Justice Brion, the Solicitor-General, as well as all the
constitutional experts and legal luminaries and scholars of this country, that the
contention of herein petitioner is contradicted by the fundamental law itself is
not absolutely true in the light of Section 5 (6) and the concomitant strict
interpretation of Section 9.
Petitioner would like to seek constitutional clarification whether the power of the
Supreme Court to appoint or designate ALL the OFFICIALS of the judiciary
excludes the Chief Justice. The use of the word “ALL” in Section 5 (6) does not
seem to suggest it. Expressium facit cessare tacitum.
Petitioner can concede that the phrase “MEMBERS OF THE SUPREME COURT”
in Section 9 includes the Chief Justice particularly if construed in the light of
Section 4 (1) on the composition of the Supreme Court. But only in the
constitutional sense that no Filipino can serve as Chief Justice unless he
qualifies first as a member of the Supreme Court.
In short and in the mind of the petitioner, the current constitutional debate on
the appointing power of the incumbent President during the prohibited period
should have been focused solely on whether or not she can appoint a member of
the Supreme Court who will replace Chief Justice Reynato S. Puno as a member of
this Court upon his retirement on 17 May 2010, and not on the designation of the
next Chief Justice, a power expressly reserved to the Supreme Court en banc by
the Constitution pursuant to Section 5 (6).
The provision of Section 4 (1) on the composition of the Supreme Court simply
denotes and stresses the idea that the Court is composed of fifteen (15) Members,
one of whom should serve as Chief Justice, the highest official of the judiciary.
With all due respect, there is a substantial distinction between the appointment
of the Chief Justice which should be done in accordance with Section 5 (6) and
the appointment of the Members of the Court in Section 9. The latter is
prerequisite to the former while the former is not subsumed in the latter, again
because of Section 5 (6).
It bears stressing here that the Chief Justice wears two hats – as head of the entire
judicial branch and as a Member of this Court exercising judicial power. The
former falls within the constitutional contemplation of Section 5 (6) while the
latter falls within the ambit of Section 9.
Needless to say, the standard and legally acceptable practice in any duly
constituted collegial body, whose members are primus inter pares, is always to
elect or select first the members thereof by the constituent body or authority, and
for the elected or selected members then to choose from among themselves who
will head the body. This is true of Board of Directors/Trustees of any juridical
entities. This is also true in the Senate and the House of Representatives. If the
intention is to depart from this practice, an express, and not an implied,
provision in the organic law or rule is usually provided. There is nothing in the
present Constitution that explicitly suggests a departure or deviation from this
generally accepted legal practice.
The language of Section 9 is clear, categorical and does not deserve an expanded
interpretation - “ The Members of the Supreme Court and judges of lower courts
shall be appointed by the President x x x.” It did not mention the Chief Justice.
In the same vein, Section 5 (6) is indubitable on the power of this Court to
appoint “all officials x x x of the judiciary”, which obviously includes the Chief
Justice. Casus omissus pro omisso habendus est. When the law omits something from
its enumeration, it should be held to have been omitted intentionally.
Following this logic and in a scenario where the Supreme Court invokes its
power under Section 5 (6) to designate as Chief Justice someone who is not yet a
member of the Court, Section 9 finds suitable application, not for the purpose of
directly appointing the Chief Justice but merely to qualify that person to be a
nominee and later to be a Member of the Supreme Court. Thereafter, such person
can be designated by the High Court en banc as its Chief Justice in accordance
with Section 5 (6).
There is no iota of doubt that the Chief Justice should be a Member of the
Supreme Court. The presidential appointment of the Chief Justice in Section 9, if
done from among the members of the Court (simply because Section 4 (1) states
that the Supreme Court is composed of the Chief Justice and 14 Associate
Justices) is untenable and contravenes Section 5 (6). This position even unduly
extends the presidential power of appointment under Section 16, Article VII of
the Constitution on the authority of the President to “appoint all other officers of
the Government whose appointment are not otherwise provided for by law,
xxx.” To be percipient about it, Section 5 (6) confers upon the Supreme Court en
banc the power to appoint the Chief Justice and therefore any appointment for
the said judicial position is excluded from the presidential prerogative.
But our constitutional history has shown that all the Chief Justices of the
Supreme Court from Cayetano Arellano to Reynato Puno was made by the
President of the Philippines. On this, petitioner would like to proffer to this
Honorable Court the following thought:
First: The appointments of former Presidents of Chief Justice Cayetano Arellano
all the way down to Chief Justice Roberto Concepcion were governed by the
1935 Constitution. And a cursory reading of the 1935 charter would show that
such prerogative is conferred on the President because of the old Section 10 (3),
Article VII that provides:
“The President shall nominate and with the consent of the
Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, officers of the Army from the
rank of colonel, of the Navy and Air Forces from the rank of captain or
commander, and all other officers of the Government whose
appointments are not herein otherwise provided for, and those
whom he may be authorized by law to appoint; but the Congress may
by law vest the appointment of inferior officers, in the President alone,
in the courts, or in the heads of departments.” (emphasis supplied)
The similar provision of the present Section 9 in the old Section 5, Article VIII -
that states: “The Members of the Supreme Court and all judges of inferior courts
shall be appointed by the President with the consent of the Commission on
Appointments” - will not produce any other interpretation than sustain the
presidential authority to appoint the Chief Justice under that Constitution
because the present provision of Section 5 (6), Article VIII of the 1987
Constitution did not exist in the 1935 Constitution, and hence, the default
appointment mechanism was the old Section 10 (3), Article VII of the 1935
Constitution, as earlier cited.
It was of no consequence even to interpret the former provision of Section 5,
Article VIII on whether or not all the Presidents who served under the 1935
Constitution can appoint the Chief Justice even if that Section 5 similarly used
the phrase “The Members of the Supreme Court”, as in the present Section 9,
since it would not escape the iron clad provisions of the old Section 10 (3), Article
VII; moreso, in the absence of the present Section 5 (6) in the 1935 charter. The
constitutional setting under the 1935 Constitution on the presidential
appointment of the Chief Justice is actually akin to that of the United States
Federal Constitution.
Thus, the so-called constitutional history on the appointment of the Chief Justices
by former Presidents at that time was well within the context of the 1935
Constitution.
Second: On the other hand, the appointments of former Chief Justices Querube
Makalintal up to Ramon Aquino were governed by the 1973 Constitution. This
Constitution vested upon the President (in Section 4, Article X) the power to
exclusively appoint the “Members of the Supreme Court”, almost similar to the
present Section 9 minus the system of nomination of the Judicial and Bar
Council. The 1973 Constitution was also the source of the present provision on
the power of the Supreme Court to appoint all its officials, with exactly identical
phraseology both under the 1973 and 1987 Constitutions.
With Section 5 (6) ingrained in the 1973 Constitution vis-a-vis the language of
Section 4, Article X, petitioner maintains that his constitutional issue in G. R. No.
191032 could have been raised in an appropriate legal setting and proceeding
obtaining at that time, which is every time a new Chief Justice is appointed
under the 1973 Constitution. However, petitioner cannot imagine the then
Marcos Supreme Court sustaining a view that would dilute the presidential
prerogatives of then President Ferdinand E. Marcos with his martial law regime.
In the mind of the petitioner, this is providential. It would have been more
difficult to reverse an established precedent even if such was rendered by a court
then perceived as beholden to the Marcos presidency than to raise this matter
now as a new thesis or submission in this petition.
Petitioner can only say that the power of the President to appoint the Chief
Justice during the martial law days of the 1973 Constitution is a mere product of
constitutional tolerance that formed part of constitutional history in the absence of
a constitutional challenge.
Third: Erstwhile Chief Justice Claudio Teehankee all the way to the present
Honorable Chief Justice Reynato Puno were all appointed by the President
under the 1987 Constitution following constitutional history and judicial
tradition. And this is in view also of the fact that the presidential prerogative to
appoint the Chief Justice has never been challenged until the filing of this
petition, despite the constitutional existence of Section 5 (6) and Section 9, which
is almost a reiteration of Section 5 (6) and Section 4, Article X of the 1973
Constitution.
Petitioner views all appointments made by the past and present Chief Executives
of the Chief Justice under the 1987 Constitution as a case of constitutional
oversight. As earlier stated, this most Honorable Court never had the
opportunity also in the past to rule upon this constitutional issue squarely in
the absence of a full-blown legal dispute. It is understandable. Every student of
law would know that judicial power (both in the context of the power of
adjudication and the power of judicial review) will not start to grind unless there
is an actual justiciable controversy.
Ergo, this constitutional challenge on the appointment of the Chief Justice by the
President in contravention with the clear and express letters of Section 5 (6) in
relation to Section 9, Article VIII of the 1987 Constitution now deserves full
consideration of this Honorable Court. In our system of government,
constitutional history, as well as judicial and political practices and tradition,
deserves respect but their preservation and observance in our nation's way of life
cannot breach the social contract between the State and the people expressed
under the 1987 Constitution.
For sure, when the people ratified the 1987 Constitution, they understood to
mean the presidential power to appoint under Section 9 as being limited plainly
to the “Members of the Supreme Court”, from whose membership the Chief
Justice could emerge. Also, when the people overwhelmingly voted “yes” on the
ratification of the 1987 charter, they understood the power of the Supreme Court
to appoint “all the officials x x x of the judiciary” to include the Chief Justice
without any qualification. Even the intent of the framers of the Constitution
cannot override what the people view as the literal and plain meaning of the
provisions of the sovereign contract that they entered into with the State. Maybe
it is for this reason that resort to legislative intent is taken by this Court only if
there is doubt or ambiguity in the language of a statute, as a cardinal rule in
statutory construction. This is also the essence of the parol evidence rule7 in written
contracts.
The separate ponencia of Mr. Justice Brion and the intervention of WTLOP argued
that the “inclusion of the Chief Justice with the general term 'Member of the
Court' has never been in doubt” citing the 1948 ruling of this Honorable Court in
Vargas vs. Rilloraza8. They said that when Section 9 referred to the “Members of
the Court” it should include the Chief Justice especially if read together with the
provision of the Constitution on the composition of the Supreme Court in Section
4 (1).
Yes, the ruling in the 1948 case of Vargas said that the Members of the Supreme
Court includes the Chief Justice but merely to emphasize the composition of the
Court. With all due respect, it had neither a legal bearing nor any constitutional
relevance in the resolution of the issue at hand, as raised by the petitioner in the
case at bar, for the following reasons:
(a) The said case assailed the constitutionality of Section 14 of the People's Court
Act (Commonwealth Act No. 682) because that law imposed additional
qualifications for membership in the Supreme Court, among others. That case is
not foursquare with the instant controversy because it did not involve an
interpretation of the “Members of the Supreme Court” falling within the
purview of the power of the President to appoint a Chief Justice under Section 5,
Article VIII of the 1935 Constitution.
(b) But even if it were the constitutional issue involved there was no need to
interpret the power of the President under the 1935 Constitution to appoint the
Chief Justice according to the provision of the then Section 5 (now Section 9)
because as earlier explained, that power was reserved by the 1935 Charter to the
President on the basis of the old Section 10 (3), Article VII. Moreover, the current
provision of Section 5 (6), Article VIII did not exist in the fundamental law at that
time.
(c) Finally, even assuming, without admitting, for the sake of argument that the
Vargas case may serve as a basis to interpret the phrase “Members of the
Supreme Court” in Section 9, it is also constitutionally permissible for this
Honorable Court to modify or even abandon that 1948 doctrine given the present
state, condition and circumstances of the Philippine Judiciary, and adopt a new
precedent that will serve as a milestone in the pursuit of judicial independence
and integrity.
This Honorable Court seemingly took the Herculean task of reversing the
precedent in Valenzuela9 on the limitation of the power of the President to
appoint the Chief Justice during prohibited period. But a modification, not even
a reversal, of the Vargas precedent in granting and siding with this motion for
reconsideration is actually less constitutionally burdensome. The only thing this
Honorable Court needs to do is to adopt a strict but literal and plain
interpretation of the wordings of Sections 5 (6) and 9, Article VIII of the
Constitution. Then, the constitutional determination whether or not the
President can appoint justices and judges consistent with earlier ruling in
Valenzuela can be confined to the issue of the next Member of this Honorable
Court who will succeed Mr. Justice Puno as a Member of the Supreme Court, but
not the Mr. Justice Puno as Chief Justice.
Herein petitioner assumes that given several constitutional options, this
Honorable Supreme Court would always rule in favor of judicial independence
and integrity not only in cases of doubt but more importantly when it is exposed
to the dangers and threats of political backlash. Preserving, defending and
maintaining the dignity of the Supreme Court as the most sacred of the
institution of the State is perhaps far more primordial, important and crucial
than the decision it renders, if only to ensure that constitutional democracy
works, and works well.
Again with all humility, petitioner reiterates that his thesis, if adopted by this
Honorable Court, is consistent with and would strengthen the principle of
separation of powers. Petitioner would like to see that day when the Supreme
Court en banc is also able to appoint the Presiding Justices of the Court of
Appeals, the Sandiganbayan and the Court of Tax Appeals in accordance with
Section 5 (6). Jockeying for these official positions in the judiciary in exchange for
political consideration would then be a thing of the past, for the heads of these
collegiate courts would only be beholden to the highest court of the land, and to
its members collectively, not individually.
3. The Mendoza petition captioned as an administrative matter should have
been dismissed because it only sought a declaratory judgment contrary to the
well-settled precepts involving justiciable controversies.
A cursory reading of the Decision of this Honorable Court in these consolidated
cases would show that it was anchored solely on the administrative case filed by
erudite lawyer Estelito Mendoza. The dismissal of the Mendoza petition,
together with all the other petitions in G. R. Nos. 191002, 191149 and 191057 for
being premature and G. R. Nos. 191032 and 191342 for lack of merit, could have
deferred, if not avoided, the reversal of the Valenzuela ruling until the President
actually exercise her supposed appointment authority of the Chief Justice
following the submission of the certified list of nominees by the Judicial and Bar
Council under Section 9.
Petitioner would like to state for the record that G. R. No. 191032 on which this
motion for reconsideration is based was not dismissed for prematurity but “for
lack of merit”, although, with all due respect, there appears to be a scant
discussion or elucidation in the ponencia of Mr. Justice Bersamin why, as earlier
argued. And this is precisely what this motion for reconsideration seeks – a
categorical judicial ruling approving or disapproving the power of the
President to appoint the Chief Justice from the point of view of the
Constitution.
Petitioner's original petition for prohibition is ripe for the exercise of the power
of judicial review because it presented a justiciable controversy that is ready for
judicial determination of this Honorable Court. And that is when the respondent
Judicial and Bar Council proceeded in its en banc meeting of 18 January 2010 and
“unanimously agreed to start the process of filling up the position of Chief
Justice x x x”10, thereby arrogating with grave abuse of discretion, amounting to
lack or excess of jurisdiction, the power expressly reserved to the Supreme Court
en banc by the Constitution under Section 5 (6).
Petitioner still pins his hope that this Honorable Court will finally rule squarely
on his petition via this motion for reconsideration because his thesis, from his
modest and humble view, is impressed with merit, and novel as it is.
But part of this motion for reconsideration is petitioner's submission that the
Mendoza petition should not have been given due course at all by this
Honorable Court.
Petitioner fully supports and agrees with the separate opinion of Mr. Justice
Nachura when he said:
“As to the petition filed by Estelito Mendoza, while it is captioned as
an administrative matter, the same is in the nature of a petition for
declaratory relief. Mendoza pleads that this Court interpret two
apparently conflicting provisions of the Constitution x x x. Petitioner
Mendoza specifically prays for such a ruling “for the guidance of the
[JBC],” a relief evidently in the nature of a declaratory judgment.
Settled is the rule that petitions for declaratory relief are outside the
jurisdiction of this Court. Moreover, this Court does not sit to
adjudicate mere academic questions to satisfy scholarly interest,
however intellectually challenging. While Mendoza and the other
petitioners espouse worthy causes, they have presented before this
Court isues which are still subject to unforseen possibilities. In other
words, the issues they raised are hypothetical and unripe for judicial
determination.”11 (underscoring supplied; citations omitted}
Again with all due respect, petitioner humbly takes the view that the Decision of
this Honorable Court promulgated on 17 March 2010 on the basis of the
Mendoza petition went against the well-entrenched doctrine on justiciable
controversies. Therefore, it warranted outright dismissal.
Argument in Support of the Motion
for a Full Court Deliberation Sans Recluse
Considering the vital significance of the constitutional issues raised in these
consolidated cases, affecting and involving as they do no less than the Office of
the Chief Justice and the independence and integrity of the Judiciary, the judicial
determination of the constitutional controversy by all the sitting and incumbent
justices of the Supreme Court is in order.
The mere fact that Chief Justice Reynato Puno sits as ex-officio head of the Judicial
and Bar Council should not prevail over the more compelling State interest for
him to participate as a Member of the Court in its deliberation involving no less
than the appointment of his successor upon his retirement on 17 May 2010. There
appears no conflict of interest to be served or violated if he acts as Chief Justice
and provide the leadership to this Honorable Court in its final discussions and
ruling on the consolidated cases, now on motion for reconsideration. The same
argument holds for Mr. Justices Carpio and Corona, notwithstanding the fact
that they have publicly declared their willingness to be Chief Justice, under this
political administration or the next. After all, the Supreme Court decides
collectively as an institution and all its sitting members are potential Chief Justice
of our Motherland.
The Supreme Court as final arbiter of every question arising from the
Constitution would certainly benefit from the expressions of individual wisdom
of the Justices, which would later translate or result in a collective erudition of
what the Constitution should be – this Honorable Court being the only
mouthpiece of our fundamental law.
Petitioner maintains that public interest would be better served if all the Justices
of the Supreme Court would participate in the next en banc deliberation of the
cases at bar. The sovereign which they serve is entitled to know how and where
they stand individually in this constitutional challenge affecting no less the
independence, dignity, and integrity of The Supreme Court.
Closing Statement
This Honorable Court is at the crossroad of judicial history. It may choose to
remain insensitive to public opinion or perception for as long as it renders a
judgment solidly and without any scintilla of doubt anchored on the
Constitution. But given constitutional options which are all constitutionally
tenable, perhaps and again with all due respect, it may be fitting to pursue the
loftier path of judicial independence. Either way, the dignity of this Honorable
Supreme Court remains intact for the Filipino people.
PRAYER
ACCORDINGLY, it is most respectfully prayed of this Honorable Court to grant
petitioner's motion for reconsideration and issue a Resolution ordering
respondent Judicial and Bar Council to desist and refrain from continuing with
its current proceedings to select the nominees to replace the judicial position to
be vacated by the Honorable Chief Justice Reynato S. Puno and thereupon to
render judgment declaring that the power or authority to appoint the Chief
Justice pertains exclusively to the Supreme Court under Section 5 (6), Article VIII
of the Constitution. Thereafter, it is also prayed of this Honorable Court to
immediately commence its own internal proceeding en banc to select the
replacement of the Honorable Chief Justice Reynato S. Puno upon his retirement
on 17 May 2010.
Petitioner further prays for such other remedies as may be deemed just and
equitable under the premises, including an oral argument on the constitutional
issues subject matter of the consolidated petitions at the discretion of this
Honorable Court.
Most respectfully submitted.
Quezon City, Metro Manila for the City of Manila: 30 March 2010
(sgd.)
ATTY. JAIME N. SORIANO, CPA, MNSA
Petitioner and Counsel for Himself
45A Visayas Avenue, Quezon City, 1100 Metro Manila
jimmy@soriano-ph.com; +639152036295
IBP No.: 810663; 8 January 2010; PPLM
PTR No.: 3226542B; 7 January 2010; Quezon City
Roll No.: 36996; page 400; book XV; 8 May 1991
MCLE Exemption No. II-001018, 21 March 2007
