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In this case, Hon. Andres Reyes, Jr. applied for both vacant positions, but obtained the required number of votes and was included in the shortlist only for the post vacated by Justice Perez. There were 14 applicants/nominees for the said post as compared to the 17 for the post vacated by Justice Brion. Competition may have been tougher in the application process for Justice Brion's replacement, resulting in Hon. Reyes not reaching the voting threshold. Whatever the reason for his non-inclusion in the shortlist for Justice Brion's post may be, the fact remains that he could not be appointed for the same. He could only qualify as a nominee for the post vacated by Justice Perez. Third, precisely because there were two application processes, the voting for the nominees was conducted separately. Thus, it was possible for applicants/nominees for both vacant positions to be voted upon twice by the same member of the JBC. The following example provided by the JBC is telling:5 Table 1. Filled-up Ballot of Member X (where maximum no. of choice is 8)
As couched, the November 29, 2016 Decision would affect the manner by which the JBC members cast their votes: Should they be entitled to only one ballot since the clustered shortlists are to be considered as one comprehensive shortlist? Should they set a guideline in determining the maximum number of choices according to the number of vacancies to be filled? These are legitimate concerns that would arise should the Court sustain its Decision. These contingencies should have been clearly addressed before we refrained from limiting the application of the ruling pro hac vice and instead ruled that it may validly and similarly be invoked in situations "wherein there are closely successive vacancies in a collegiate court, xxx regardless of whether the JBC carried out combined or separate application process/es for the vacancies. "6 As a final word, the Court is well aware that the treatment of the vacancies that resulted from the mandatory retirements of Justices Perez and Brion is capable of repetition to those from the retirements of Associate Justices Jose Catral Mendoza and Bienvenido L. Reyes on July 6, 2017 and August 13, 2017, respectively. We must then be prudent in resolving this collateral issue before the Court is hounded by controversies surrounding the legitimacy of the succeeding appointees to the Court. The foregoing premises considered, I hereby register my vote to PARTIALLY GRANT the instant Motion for Reconsideration-in-Intervention. Although the unconstitutionality of the clustering is sustained, the application of the doctrine should be limited to simultaneous vacancies in collegiate courts, not to closely successive vacancies thereto. SO ORDERED. PRESBITERO J. VELASCO, JR. Footnotes 1 Draft Resolution, p. 17. 2 November 29, 2016, p. 32 3 Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. xxx 4 Motion for Reconsideration-in-Intervention, pp. 20-21. 5 Motion for Reconsideration-in-Intervention, pp. 20-21 6 November 29, 2016 Decision. The Lawphil Project - Arellano Law Foundation 
SEPARATE OPINION LEONEN, J.: I concur in the result insofar as the finding that respondents did not gravely abuse their discretion in making appointments to the Sandiganbayan as all six vacancies were opened for the first time. I do not find any reasonable basis to cluster nominees in this case, where the law created simultaneous new vacancies for a collegial court. I agree with the ponencia that future vacancies for collegial appellate courts and this Court, are not at issue in this case. Hence, this Court should rule on the issues as it does not render advisory opinions. I likewise concur in the ponencia 's denial of the Motion for Inhibition filed by the Judicial and Bar Council. This Court, in its Internal Rules, provided the grounds1 on which a member of the Court must inhibit himself or herself from participating in the resolution of the case, and none of the cited reasons apply to the ponente. I am convinced that there is no reason for the ponente to voluntarily inhibit herself from resolving or participating in this case. The ponente has adequately explained that she was neither privy nor consulted by the Judicial and Bar Council on the move to cluster the applicants to the newly created Sandiganbayan positions into six (6) separate shortlists.2 I see no reason to doubt the ponente 's statement of impartiality. In the years that I have worked alongside the ponente, I have personally witnessed her unblemished character and unwavering commitment to upholding the rule of law. Historically, her moral compass has never waned. I have no reason to doubt her impartiality in this case. However, the Judicial and Bar Council should be allowed to intervene in the case. As the party who committed the act of clustering the Sandiganbayan applicants-an act that was eventually declared unconstitutional-the Judicial and Bar Council clearly has a legal interest in the matter under litigation. Without the participation of the Judicial and Bar Council, the doctrine in this case will only be about the discretion of the President when there are simultaneous vacancies in newly created divisions of a collegial court. This policy should not extend to other vacancies caused by retirements in the future. Nonetheless, I reiterate that the Decision3 dated November 29, 2016 only affects collegial bodies such as the Sandiganbayan, when there are simultaneous vacancies. When there are successive vacancies in collegial courts, such as what happened in this Court, with the recent retirement of Associate Justices Jose P. Perez (Associate Justice Perez) and Arturo D. Brion (Associate Justice Brion), there may be valid reasons for the submission of two (2) separate shortlists to the President. However, again, that is not at issue in this case. On November 16, 2016, the Judicial and Bar Council interviewed the following candidates for the position of Supreme Court Associate Justice to replace Associate Justice Perez, who compulsorily retired on December 14, 2016:
The following were also candidates for the position of Supreme Court Associate Justice (to replace Associate Justice Perez), although they were no longer interviewed because their previous interviews were still valid:
On November 17, 2016, the Judicial and Bar Council interviewed the following candidates for the position of Supreme Court Associate Justice to replace Associate Justice Brion, who compulsorily retired on December 29, 2016:
The following candidates were likewise considered for the position vacated by Associate Justice Brion:
On December 2, 2016, the Judicial and Bar Council forwarded to President Rodrigo Roa Duterte (President Duterte) the following nominations for the position of Supreme Court Associate Justice (to replace Associate Justice Perez):
One (1) week later, on December 9, 2016, the Judicial and Bar Council forwarded to President Duterte a second shortlist for the position of Supreme Court Associate Justice (to replace Associate Justice Brion) with the following nominees:
Although the two situations appear similar, in that the Judicial and Bar Council submitted two separate shortlists for the two vacancies in this Court and six separate shortlists for the six vacancies in the Sandiganbayan, the similarity ends there. The two shortlists for this Court were for the two vacancies brought about by the mandatory retirement of two Associate Justices on two separate dates. Further, applicants such as Romulo V. Borja, Amy C. Lazaro-Javier, and Joseph P. San Pedro opted to apply only for the position vacated by Associate Justice Brion, while the other candidates applied for both vacancies. In comparison, the applicants for the Sandiganbayan applied for all six vacancies. From September 28, 2015 to October 13, 2015, the Judicial and Bar Council interviewed the following candidates for the six newly created positions of Sandiganbayan Associate Justice:
The following candidates had been previously interviewed by the Judicial and Bar Council and were also considered for the six newly created Sandiganbayan positions:
None of the candidates applied for a particular Sandiganbayan division, yet on October 26, 2015, the Judicial and Bar Council grouped them in six (6) separate shortlists to correspond to the six (6) newly created Sandiganbayan divisions. The letters to Former President Benigno Simeon C. Aquino III (Former President Aquino) read:
Unlike the Sandiganbayan shortlists, some of the nominees for the Supreme Court vacancies appeared in both shortlists submitted to the President because they applied for both vacancies. This is a tacit recognition that these nominees qualified for both vacancies in this Court. This is contrary to the unique nature of the Sandiganbayan shortlists in this case, where the nominees were limited to only one shortlist each even if they qualified and applied for all of the vacancies. With the forthcoming mandatory retirement of Associate Justice Bienvenido L. Reyes on July 6, 2017 and Associate Justice Jose C. Mendoza on August 13, 201 7, this Court will have another set of vacancies. By the time the two positions for Supreme Court Associate Justice become vacant, the Judicial and Bar Council might be composed of different members. The composition of the Judicial and Bar Council regularly changes because of the term-sharing arrangement practiced by the Senate and the House of Representatives. The Chair of the House of Representatives Committee on Justice sits as the Judicial and Bar Council ex-officio member from January to June, while the Chair of the Senate Committee on Justice and Human Rights takes over from July to December. Because of the different dates of the vacancies, as well as the possibly different composition of the Judicial and Bar Council, two different shortlists should be submitted. In its Motion for Reconsideration, the Judicial and Bar Council explained that it merely followed Article VIII, Section 913 of the 1987 Constitution when it clustered into six separate shortlists the nominees for the six simultaneous vacancies for Sandiganbayan Associate Justice.14 It contended that clustering was a practical solution meant to distinguish one shortlist from another and avoid confusion.15 The Judicial and Bar Council16 was created under the 1987 Constitution. It was intended to be a fully independent constitutional body functioning as a check-and-balance on the President's power of appointment. Before the existence of the Judicial and Bar Council, the executive and legislative branches had the exclusive prerogative of appointing members of the judiciary, subject only to confirmation by the Commission on Appointments. However, this appointment process was highly susceptible to political pressure and partisan activities and eventually prompted the need for a separate, competent, and independent body to recommend to the President nominees to the Judiciary.17 The Judicial and Bar Council is not merely a technical committee that evaluates the fitness and integrity of applicants in the Judiciary. It is a constitutional organ participating in the process that guides the direction of the Judiciary. Its composition represents a cross section of the legal profession, retired judges and Justices, and the Chief Justice. More than a technical committee, it has the power to examine the judicial philosophies of the applicants and make selections, which it submits to the President. The President may have the final discretion to choose, but he or she chooses only from that list. This is the complex relationship mandated by the sovereign through the Constitution. It ensures judicial independence, checks and balances on the Judiciary, and assurance for the rule of law. In the proper actual case, the exact metes and bounds of the discussion of the Judicial and Bar Council can be determined. Here, however, the President did not abuse his discretion when he decided that there was no reason to cluster the applicants for the Sandiganbayan vacancies. As a collegial court, the Sandiganbayan seats members who equally share power and sit in divisions of three (3) members each. The numerical designation of each division only pertains to the seniority or order of precedence based on the date of appointment. The Rule on Precedence is in place primarily for the orderly functioning of the Sandiganbayan, as reflected in Rule II, Section 1 of the Revised Internal Rules of the Sandiganbayan:
In single courts such as the regional trial courts or municipal trial courts, each branch carries its own station code and acts separately and independently from other co-equal branches. On the other hand, the Sandiganbayan divisions, as part of a collegial court, do not possess similar station codes. This is because there is no discernible difference between the divisions, and decisions are made not by one justice alone but by a majority or all of the members sitting in a division or En Banc. This reinforces the collegial nature of the Sandiganbayan: one that is characterized by the equal sharing of authority among the members. Additionally, in single courts, applicants may apply for each available vacancy; thus, to find the same applicant in shortlists for vacancies in different single courts is common. On the other hand, applicants in collegial courts apply only once even when there are simultaneous vacancies because among divisions in a collegial court, there is no substantial difference to justify the creation of separate shortlists or clusters for each vacancy.1âwphi1 I am of the view that Former President Aquino did not commit grave abuse of discretion in disregarding the shortlists submitted to him by the Judicial and Bar Council for the simultaneous new vacancies and in treating all six shortlists as one from which he could choose the Sandiganbayan Justices. I reserve judgment on future vacancies in any collegial appellate court. This Court is unanimous on the scope of this judgment. On the issue of this Court's supervision over the Judicial and Bar Council, I acknowledge that this Court has already taken cognizance and docketed as separate matters the deletion of Rule 8, Section 1 of JBC-009 and the removal of incumbent Supreme Court Senior Associate Justices as consultants of the Judicial and Bar Council.18 However, I reiterate that the Judicial and Bar Council is not mandated to submit its revised internal rules to this Court for approval. Jardeleza v. Sereno19 emphasized that this Court's power of judicial review is only to ensure that rules are followed.20 It has neither the power to lay down these rules nor the discretion to modify or replace them.21 The Internal Rules of the Judicial and Bar Council is necessary and incidental to the function conferred to it by the Constitution. The Constitution may have provided the qualifications of the members of the Judiciary, but it has given the Judicial and Bar Council the latitude to promulgate its own set of rules and procedures to effectively ensure its mandate. This Court cannot meddle in the Judicial and Bar Council's internal rules and policies. To do so would be an unconstitutional affront to the Judicial and Bar Council's independence. ACCORDINGLY, I concur only in the result. MARVIC M.V.F. LEONEN Footnotes 1 S. CT. INT. RULES, Rule 8, sec. 1 provides:
2 Resolution (G.R. No. 224302), pp. 5-6. 3 Aguinaldo v. Aquino, G.R. No. 224302, November 29, 2016 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/20 l 6/november2016/2243 02. pdf> [Per J. Leonardo-De Castro, En Banc]. 4 Judicial and Bar Council, Announcement dated October 20, 2016 <http://jbc.judiciary.gov.ph/announcements/2016/Announcement_SC%20Public%20int%20and%20LEB%20 5 Id. 6 Judicial and Bar Council, Announcement dated October 28, 2016 <http://jbc.judiciary.gov.ph/announccments/2016/ Announcement_ SC%20Public%20int_Justice%20Brion_10-28-16.pdt> (visited February 6, 2017). 7 Id. 8 Judicial and Bar Council, letter dated December 2, 2016 <http://jbc.judiciary.gov.ph/announcements/2016/Shortlist_ SC-Perez_ 12-2-16.pdf> (visited February 6, 2017). 9 Judicial and Bar Council, letter dated December 9, 2016 <http://jbc.judiciary.gov.ph/announcements/2016/Shortlist_ SC-Brion_12-9-16. pdf> (visited February 6, 2017). 10 Judicial and Bar Council, Announcement dated September 11, 2015 <http://jbc.judiciary.gov.ph/announcements/2015/Announcement_9-11-15 _ Revised.pdf> (visited February 6, 2017). 11 Id. 12 G.R. No. 224302, November 29, 2016 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/november2016/224 302. pdf> 3-4 [Per J. Leonardo-De Castro, En Banc]. 13 CONST., art. VIII, sec. 9 provides:
14 Resolution (G.R. No. 224302), pp. 13-14. 15 Id. at 15. 16 CONST., art. VIII, sec. 8. 17 Chavez v. Judicial and Bar Council, 691 Phil.173, 188 (2012) [Per J. Mendoza, En Banc]. 18 Aguinaldo v. Aquino, G.R. No. 224302, November 29, 2016 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?tile=/jurisprudence/2016/november2016/224302.pdf> 40 [Per J. Leonardo-De Castro, En Banc]. 19 G.R. No. 213181, August 19, 2014, 733 SCRA 279 [Per J. Mendoza, En Banc]. 20 Id. at 326. 21 Id. The Lawphil Project - Arellano Law Foundation
SEPARATE OPINION CAGUIOA, J.: I am filing this separate opinion to clarify my position on the final disposition of the case wherein the Court, in dismissing the Petition for Quo Warranto and Certiorari, declared the clustering of nominees by the Judicial and Bar Council (JBC) unconstitutional and the appointments of Associate Justices Michael Frederick L. Musngi and Ma. Geraldine Faith A. Econg, together with the four other newly-appointed Associate Justices of the Sandiganbayan, as valid. As explained below, I maintain my position that the dismissal of the Petition and the upholding of the appointments of the six newly-appointed Associate Justices of the Sandiganbayan are in order. It is, however, the ruling on the unconstitutionality of the questioned act of the JBC that I am espousing a separate view. In the Decision dated November 29, 2016, I joined the Concurring Opinion of Justice Marvic M.V.F. Leonen. Justice Leonen stated:
After the JBC filed on December 27, 2016 its Motion for Reconsideration (with Motion for the Inhibition of the Ponente) and on February 6, 2017 its Motion for Reconsideration-in-Intervention (Of the Decision dated 29 November 2016), the majority of the Court resolved to grant its motion/prayer for intervention and to deny the Motion for the Inhibition of the Ponente. To this extent, I concur with the Court's Resolution. On the motion for inhibition, the ponente is in the best position to determine whether her involvement with the JBC justifies her possible inhibition in this case. The ponente has found no basis for her inhibition, and I accept her decision unqualifiedly. On the JBC's motion to intervene, I reiterate the position taken by J. Leonen, to which I concurred, that the JBC should be allowed to intervene. To be sure, the JBC is not an ordinary body. It was created by no less than our Constitution, and given the constitutional mandate of recommending to the President the nominees to every vacancy in the judiciary.2 Hence, since the JBC' s very action has been declared by the Court unconstitutional, the JBC clearly has a legal interest in the matter in litigation and is so situated as to be adversely affected by the disposition of the Court.3 Everyone deserves a day in court. The JBC is no exception. The very purpose and singular function of the JBC is involved in the Petition as the petitioners' reliefs are grounded on the simple formulation that the President's act of appointing Justices Musngi and Econg was made in violation of Section 9, Article VIII of the Constitution. This, in turn, is premised on the petitioners' belief that the President could not appoint Justices for any given position (in specific reference to the 16th and 21st stations/ Associate Justice positions) outside of the list of nominees that had been clustered by the JBC for each of the stations/ Associate Justice positions. In plain terms, the Court is confronted with the proper interpretation of Section 9, Article VIII of the Constitution, to wit:
To my mind, the pointed question to be resolved is this: "If respondent President Benigno Simeon C. Aquino III (President Aquino) had made his appointments of the six new Associate Justices of the Sandiganbayan based on the six separate lists prepared by the JBC, meaning one appointment per list, would he have violated the Constitution?" If the answer is in the affirmative, then the action of the JBC would be unconstitutional. Inversely, if the answer is in the negative, meaning the Court upholds as constitutional the appointments made following the clustering by the JBC, then that would, in turn, mean that the JBC had acted pursuant to its mandate under the Constitution. To reiterate, Section 9, Article VIII of the Constitution provides:
President Aquino was presented with six lists to fill up the six vacancies in the Sandiganbayan. Each list has at least three nominees. An appointment coming from each of the six lists would be in keeping with the Constitutional provision. I cannot see it otherwise. Thus, had President Aquino picked one from each of the six lists prepared by the JBC, I would not have declared his action unconstitutional. My basis is the plain language of the above Constitutional provision which mandates the JBC to recommend nominees to any vacancy in the judiciary-to prepare a list of at least three nominees for every vacancy.4 So long as the grouping of at least three nominees for every vacancy by the JBC did not impinge on the President's appointing power, there is, in my view, no violation of the Constitution. Thus, I cannot view as grave abuse of discretion the act of the JBC in adopting the six lists it came up with following its "textualist approach of constitutional interpretation". In the same vein, that President Aquino chose to disregard JBC's clustering, and considered all the 3 7 nominees named in the six lists, is likewise "textually compliant" with Section 9, Article VIII of the Constitution (i.e., because there are at least three nominees for each of the six Associate Justice positions).5 For this reason, I cannot find the act of President Aquino as constituting grave abuse of discretion. In fine, I find nothing unconstitutional in the questioned action of the JBC-in the same manner that I find nothing unconstitutional in the act of President Aquino in disregarding the clustering done by the JBC, and in choosing Associate Justices for each of the vacancies "outside" of the "clustered" lists provided by the JBC. ACCORDINGLY, I vote to RECONSIDER the Decision dated November 29, 2016 and to DELETE from the dispositive portion the declaration that "the clustering of nominees by the Judicial and Bar Council [as] UNCONSTITUTIONAL." ALFREDO BENJAMIN S. CAGUIOA Footnotes 1 Hon. Philip A. Aguinaldo, et al. v. His Excellency President Benigno Simeon C. Aquino Ill, et al., G.R. No. 224302, November 29, 2016, Concurring Opinion of J. Leonen, p. 1. 2 Section 8(5), Article VIII of the Constitution provides: "The Council shall have the principal function of recommending appointees to the judiciary. x x x" 3 RULES OF COURT, Rule 19, Sec. 1. 4 A list containing at least three nominees consists a group. A group may also be called a cluster. However, a "cluster" is defined by Merriam-Webster as: "a number of similar things that occur together: such as a : two or more consecutive consonants or vowels in a segment of a speech b : a group of buildings and especially houses built together on a sizable tract in order to preserve open spaces larger than the individual yard for common recreation c : an aggregation of stars or galaxies that appear close together in the sky and are gravitationally associated x x x d : a larger than expected number of cases of disease (as leukemia) occurring in a particular locality, group of people, or period of time e: a number of computers networked together in order to function as a single computing system x x x." MERRIAM-WEBSTER available at https://www.merriam-webster.com/dictionary/cluster; last accessed on February 27, 2017. As a verb, "cluster" means "to come together to form a group." Id. Either a group or a cluster has no fixed legal meaning. "Clustering" has no definitive legal import. 5 Meaning, since there were 6 positions, there should have been at least a minimum of 18 nominees in compliance with the Constitution. Thus, since there were, in fact, 37 nominees for the 6 positions, then the Constitutional requirement was still met. The Lawphil Project - Arellano Law Foundation
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