PAMANTASAN NG LUNGSOD NG

MAYNILA
(University of the City of Manila)
GRADUATE SCHOOL OF LAW

Assignment: THE APPLICATION OF THE

CONSTITUTIONAL
PROVISION ON MIDNIGHT
APPOINTMENTS TO THE
APPOINTMENTS IN THE
JUDICIARY

In Partial Fulfillment of the Requirements

in the Course CONSTITUTIONAL
LITIGATION

August 6, 2011

The compulsory retirement of Chief

Justice Reynato S. Puno seven (7) days
after the presidential elections on May 10,
2010 raised questions on the application of
the
constitutional
provision
against
midnight appointments to appointments in
the judiciary given the national interest at
stake on the impending vacancy that the
retirement would create.
On November 9, 1998, the Supreme
Court, through Chief Justice Narvasa, had
the occasion to rule on the application of
the constitutional prohibition against
midnight appointments holding that the
President cannot appoint members of the
judiciary during the two (2) months
immediately before the next presidential
election and until the end of his term since
the prohibition applies to all kinds of
appointments by the President without
qualification as to which department of the
government
(In
Re:
Appointments
dated March 30, 1998 of Hon. Mateo
A. Valenzuela and Hon. Placido B.
Vallarta as Judges of the Regional Trial
Court of Branch 62, Bago City and of
Branch
24,
Cabananatuan
City,
respectively, A. M. No. 98-5-01-SC,
November 9, 1998). Thus, in the same
case, the Supreme Court declared the
appointment signed by the President of
Hon. Mateo A. Valenzuela and Hon. Placido
B. Vallarta as Judges of the Regional Trial
Court of Branch 62, Bago City and of
Branch 24, Cabanatuan City, respectively

and ordered them to cease and desist from

discharging the duties of the office of
Judges of the Court.
However, in its March 17, 2010 ruling
in consolidated petitions filed before it, the
Supreme Court made a complete about
face to rule that the President may appoint
the successor of Chief Justice Reynato S.
Puno even during the election-ban period.
The Court thus ruled:
The
records
of
the
deliberations of the Constitutional
Commission
reveal
that
the
framers
devoted
time
to
meticulously drafting, styling, and
arranging the Constitution. Such
meticulousness indicates that the
organization and arrangement of
the provisions of the Constitution
were not arbitrarily or whimsically
done by the framers, but purposely
made to reflect their intention and
manifest their vision of what the
Constitution
should contain.
X x x .
Had the framers intended to
extend the prohibition contained in
Section
15,
Article
VII
to
the
appointment of Members of the
Supreme Court, they could have
explicitly done so. They could not have
ignored the meticulous ordering of the
provisions. They would have easily and
surely written the prohibition made
explicit in Section 15, Article VII as

being
equally
applicable
to
the
appointment of Members of the
Supreme Court in Article VIII itself, most
likely in Section 4(1), Article VIII. That
such specification was not done only
reveals that the prohibition against the
President or Acting President making
appointments within two months before
the next presidential elections and up
to the end of the Presidents or Acting
Presidents term does not refer to the
Members of the Supreme Court.
Although Valenzuela[67] came to hold
that the prohibition covered even
judicial appointments, it cannot be
disputed that the Valenzuela dictum did
not firmly rest on the deliberations of
the
Constitutional
Commission.
Thereby, the confirmation made to the
JBC by then Senior Associate Justice
Florenz D. Regalado of this Court, a
former member of the Constitutional
Commission, about the prohibition not
being intended to apply to the
appointments to the Judiciary, which
confirmation Valenzuela even expressly
mentioned,
should
prevail.
(De
Castro vs. JBC and President Gloria
Macapagal-Arroyo,
G.R.
Nos.
101002, Soriano vs. JBC, G.R. No.
191032, PHILCONSA vs. JBC, G.R.
No. 191057, In re: Applicability of
Section 15, Article VII of the
Constitution to the Appointments
to the Judiciary, G. R. No. 191149,
Peralta vs. JBC, G.R. No. 191342,
PBA,
Inc.
vs.
JBC
and
Her
Excellency
Gloria
MacapagalArroyo, G.R. No. 191420, March 17,
2010)

With due respect to the wisdom of the

later decision, I choose to dissent to the
ruling therein and maintain that the
constitutional prohibition against midnight
appointments likewise applies to the
judiciary and even to vacancy in the Office
of the Chief Justice.
It cannot be brushed aside that there is
a seeming contradiction in the High Courts
stand with respect to the merits of the
Valenzuela Ruling. In order to bolster its
ruling
in
the
later
Consolidated
Petitions, the Supreme Court even
pointed to the confirmation made to the
JBC by then Senior Associate Justice Florenz
D. Regalado of the Supreme Court, a
former member of the Constitutional
Commission, about the prohibition not
being
intended
to
apply
to
the
appointments to the Judiciary, but the
Supreme Court was likewise very swift to
say that Valenzuela now deserves to be
quickly sent to the dustbin of the unworthy
and forgettable. To my mind, how can the
Supreme Court adopt a particular portion
of its Decision in order to justify its present
stand but which Decision it likewise
condemns
to
the
oblivion
of
our
jurisprudential memories?
In practical
sense, I cannot just accept a theory based
on something that has been obliterated by
the very same person proposing the theory.
Finally, I submit that Section 15,
Article VII in relation to Section 9,
Article VIII of the Constitution applies

even to appointments of the members of

the judiciary, even to the appointment of
the Chief Justice. The Constitution is one
complete law.
While it is divided into
several
articles
relating
to
varied
governmental principles, I maintain that it
should be read as a whole and all
interpretations must be made in order to
give efficacy to every provisions thereof.
Section 15, Article VII clearly stated:
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.
(emphasis
and
underscoring supplied)

I agree with the Valenzuela Ruling

that the prohibition applies to all types of
appointments
in
all
governmental
departments and the permission to
appointments to EXECUTIVE POSITIONS
when continued vacancies therein will
prejudice public service or endanger public
safety, is the only exception. Had the
framers of the constitution intended it to
apply only to the executive department,
the use of the word EXECUTIVE would
have been superfluous and they could have
simply used the word POSITIONS for it
would only be understood to mean
appointments in the executive department.

I anchor my position upon the very fact

that the decision on the Consolidated
Petitions did not contain any mention or
reference
to
actual
Constitutional
Commission deliberations that would
categorically show that the framers of the
constitution intends it to apply only to the
appointments
in
the
executive
departments. Again, this is on the premise
that the High Court has obliterated the
Valenzuela Ruling in our collective legal
minds and whatever confirmation of a
member of the Constitutional Commission
(referring to Justice Florenz D. Regalado)
might have made in so far as the
application of the prohibition only to the
executive department, no longer holds
water in our system of jurisprudence.