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EN BANC

G.R. No. Nos. 82126-27 March 8, 1988

(BRIG. GEN. LUTHER A. CUSTODIO ET AL., VERSUS SANDIGANBAYAN) MARCH 8, 1988, SPECIAL ACTION FOR PROHIBITION WITH PRAYER FOR A WRIT OF PRELIMINARY INJUNCTION OR RESTRAINING ORDER.

Considering that the temporary absence in the Third Division of respondent court caused by illness of Justice Jose S. Balajadia, who as alleged in the petition may be absent for two (2) weeks, was to be temporarily substituted by a regular member of the First Division in accordance with Section 2, Rule III of the Rules of the respondent court which provide as follows:

SEC. 2. Vacancy How Filled. - In case of any vacancy in the composition of a division, whether permanent or temporary, the Presiding Justice may designate an Associate Justice of the Court, to be determined by strict rotation on the basis of the reverse order of precedence, to sit as a special member of said division with all the rights and prerogatives of a regular member of said division in the trial and determination of cases assigned thereto, unless the operation of the other divisions of the Court Will be prejudiced thereby, in which case, the procedure provided for in Section 3, Rule VIII of these Rules shall apply.

that the said rules were adopted by respondent court on January 10, 1979, pursuant to the provisions of Section 5 of Article XIII of the 1973 Constitution, as implemented by Presidential Decree No. 1606 of December 10, 1978; that although in the case of Cabigao vs. Sandiganbayan, ¹ cited by petitioners, this Court observed on the need of "reducing temporary changes in its division to the barest minimum, ... ," ²however, the court did not rule out such changes as maybe warranted, much less was it held that it is not constitutionally legal or valid; and that under the circumstances of this case, the designation of a member of the First Division to temporarily act in substitution of the absent member of the Third Division of respondent court is lawful and proper; the Court Resolved to DISMISS the petition for failure to show that the respondent court committed a grave abuse of discretion. This dismissal is immediately executory

Fernan and Narvasa, JJ., took part.