In re: Valenzuela

In re: Valenzuela

A.M. No. 98-5-01-SC November 9, 1998

Narvasa, C.J.

Facts:

                On March 30, 1998, The President signed appointments of Hon. Mateo Valenzuela and Hon. Placido Vallarta as Judges of RTC-Bago City and Cabanatuan City, respectively.  These appointments were deliberated, as it seemed to be expressly prohibited by Art 7 Sec 15 of the Constitution:

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.”

A meeting was held on March 9, 1998 by the Judicial and Bar Council to discuss the constitutionality of appointments to the Court of Appeals (CA) in light of the forthcoming 1998 Presidential elections.  Senior Associate Justice Florenz Regalado, Consultant of the Council and Member of the 1986 Constitutional Commission, was in the position that “election ban had no application to the CA based on the Commission’s records”.  This hypothesis was then submitted to the President for consideration together with the Council’s nominations for 8 vacancies in the CA.

                The Chief Justice (CJ) received on April 6, 1998, an official communication from the Executive Secretary transmitting the appointments of 8 Associate Justices of CA duly signed on March 11, 1998 (day immediately before the commencement of the ban on appointments), which implies that the President’s Office did not agree with the hypothesis.

                The President, addressed to the JBC, requested on May 4, 1998 the transmission of the “list of final nominees” for the vacancy in view of the 90 days imposed by the Constitution (from Feb 13, date present vacancy occurred).  In behalf of the JBC, CJ sent the reply on May 6 that no session has been scheduled after the May elections for the reason that they apparently did not share the same view (hypothesis) proposed by the JBC shown by the uniformly dated March 11, 1998 appointments.  However, it appeared that the Justice Secretary and the other members of the Council took action without waiting for the CJ reply.  This prompted CJ to call for a meeting on May 7.  On this day, CJ received a letter from the President in reply of the May 6 letter where the President expressed his view that Article 7 Sec 15 only applied to executive appointments, the whole article being entitled “EXECUTIVE DEPT”.  He posited that appointments in the Judiciary have special and specific provisions, as follows:

Article 8 Sec 4

“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.”

Article 8 Sec 9

“The Members of the Supreme Court and judges in lower courts shall be appointed by the President from the list of at least three nominees prepared by the Judicial and Bar Council for every vacancy.  Such appointments need no confirmation.

                On May 12, CJ received from Malacañang, the appointments of the 2 Judges of the RTC mentioned.  Considering the pending proceedings and deliberations on this matter, the Court resolved by refraining the appointees from taking their oaths.  However, Judge Valenzuela took oath in May 14, 1998 claiming he did so without knowledge on the on-going deliberations.  It should be noted that the originals of the appointments for both judges had been sent to and received by the CJ on May 12 and is still in the latter’s office and had not been transmitted yet.  According to Judge Valenzuela, he did so because of the May 7 Malacañang copy of his appointment.

                In construing Article 7 and 8: when there are no presidential elections, Art. 8 shall apply where vacancies in SC shall be filled within 90 days otherwise prohibition in Art. 7 must be considered where the President shall not make any appointments.  According to Fr. Bernas, the reason for prohibition is in order not to tie the hands of the incoming Pres through midnight appointments.

Issue:

                whether, during the period of the ban on appointments imposed by Section 15, Article VII of the, Constitution, the President is nonetheless required to fill vacancies in the judiciary, in view of Sections 4(1) and 9 of Article VIII; whether he can make appointments to the judiciary during the period of the ban in the interest of public service.

Held:

                The provisions of the Constitution material to the inquiry at bar read as follows: ³

Sec. 15, Article VII:

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.

Sec. 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.

Sec. 9, Article VIII :

The members of the Supreme Court and judges in 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.

During the period stated in Section 15. Article VII of the Constitution — “(t)wo months immediately before the next presidential elections and up to the end his term” — the President is neither required to make appointments to the courts nor allowed to do so; and that Sections 4(1) and 9 of Article VIII simply mean that the President is required to fill vacancies in the courts within the time frames provided therein unless prohibited by Section 15 of Article VII. It is not noteworthy that the prohibition on appointments comes into effect only once every six years.

Section 15, Article VI is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within the two months preceding a Presidential election and are similar to those which are declared elections offenses in the Omnibus Election Code, viz.:

Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense:

(a) Vote-buying and vote-selling. — (1) Any person who gives, offer or promises money or anything of value gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection process of a political party.

xxx xxx xxx

(g) Appointment of new employees, creation of new position, promotion, or giving salary increases. — During the period of forty-five days before a regular election and thirty days before a regular election and thirty days before a special election, (1) any head, official or appointing officer of a government office, agency or instrumentality, whether national or local, including government-owned or controlled corporations, who appoints or hires any new employee, whether provisional, temporary, or casual, or creates and fills any new position, except upon prior authority of the Commission. The Commission shall not grant the authority sought unless, it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and that the position shall not be filled in a manner that may influence the election.

The second type of appointments prohibited by Section 15, Article VII consist of the so-called “midnight” appointments. There may well be appointments to important positions which have to be made even after the proclamations of a new President. Such appointments, so long as they are “few and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee’s qualifications,” ^can be made by the outgoing President.

                Section 15 may not unreasonably be deemed to contemplate not only “midnight” appointments — those made obviously for partisan reasons as shown by their number and the time of their making — but also appointments of the Presidential election.

The exception in the same Section 15 of Article VII allows only the making of temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. Obviously, the article greatly restricts the appointing power of the President during the period of the ban.

Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on the President’s power of appointments, it is the Supreme Court’s view that, as a general proposition, in case of conflict, the former should yield to the latter. Surely, the prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban which, incidentally and as earlier pointed out, comes to exist only once in every six years. Moreover, those occurring in the lower courts can be filled temporarily by designation. But prohibited appointments are long-lasting and permanent in their effects. They may, as earlier pointed out, their making is considered an election offense.

To be sure, instances may be conceived of the imperative need for an appointment, during the period of the ban, not only in the executive but also in the Supreme Court. This may be the case should the membership of the Court be so reduced that it will have no quorum, or should the voting on a particularly important question requiring expeditious resolution be evenly divided. Such a case, however, is covered by neither Section 15 of Article VII nor Sections 4 (1) and 9 of Article VIII.