Chavez vs. JBC

ENBANC

FRANCISCO I. CHAVEZ, Petitioner,

- versus -

JlJDICIALAND BAR COUNCIL, SEN. FllANCIS JOSEPH G. ESCUDERO and llEP. NIEL C. TUPAS, JR.,

Respondents.

G.R. No. 202242

Present:

CARPIO,* VELASCO, JR.,* LEONARDO-DE CASTRO,* BRION**

' PERALTA

' BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, SERENO,* REYES and PERLAS-BERNABE, JJ.

)( ----------------------------------------------------------------------------------- )(

DECISION

MENDOZA, J.:

The issue at hand has been in hibernation until the unexpected

departure of Chief Justice Renato C. Corona on May 29, 2012, and the

nomination of former Solicitor General Francisco I. Chavez (petitioner), as

• No Part - Inhibited for being a JBC applicant.

"Onleavc. Also no part- lnhibitcd for being a JBC applicant.

DECISION 2 G.R. No. 202242

his potential successor, triggered the filing of this case. The issue has

constantly been nagging legal minds, yet remained dormant for lack of

constitutional challenge.

As the matter is of extreme urgency considering the constitutional

deadline in the process of selecting the nominees for the vacant seat of the

Chief Justice, the Court cannot delay the resolution of the issue a day longer.

Relegating it in the meantime to the back burner is not an option.

Does the first paragraph of Section 8, Article VIII of the 1987

Constitution allow more than one (1) member of Congress to sit in the JBC?

Is the practice of having two (2) representatives from each house of

Congress with one (1) vote each sanctioned by the Constitution? These are

the pivotal questions to be resolved in this original action for prohibition and

injunction.

Long before the naissance of the present Constitution, the annals of

history bear witness to the fact that the exercise of appointing members of

the Judiciary has always been the exclusive prerogative of the executive and

legislative branches of the government. Like their progenitor of American

origins, both the Malolos Constitution1 and the 1935 Constitution2 had

vested the power to appoint the members of the Judiciary in the President,

subject to confirmation by the Commission on Appointments. It was during

these times that the country became witness to the deplorable practice of

aspirants seeking confirmation of their appointment in the Judiciary to

ingratiate themselves with the members of the legislative body.3

1 Article 80 Title X of the Malolos Constitution provides: “The Chief Justice of the Supreme Court and the Solicitor-General shall be chosen by the National Assembly in concurrence with the President of the Republic and the Secretaries of the Government, and shall be absolutely independent of the Legislative and Executive Powers.” 2 Section 5 Article VIII of the 1935 Constitution provides: “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.” 3 1 Records of the Constitutional Commission Proceedings and Debates, 437.


Then, with the fusion of executive and legislative power under the

1973 Constitution,4 the appointment of judges and justices was no longer

subject to the scrutiny of another body. It was absolute, except that the

appointees must have all the qualifications and none of the disqualifications.

Prompted by the clamor to rid the process of appointments to the

Judiciary from political pressure and partisan activities,5 the members of the

Constitutional Commission saw the need to create a separate, competent and

independent body to recommend nominees to the President. Thus, it

conceived of a body representative of all the stakeholders in the judicial

appointment process and called it the Judicial and Bar Council (JBC). Its

composition, term and functions are provided under Section 8, Article VIII

of the Constitution, viz:

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. (2) The regular members of the Council shall be appointed by the President for a term of four years with the consent of the Commission on Appointments. Of the Members first appointed, the representative of the Integrated Bar shall serve for four years, the professor of law for three years, the retired Justice for two years, and the representative of the private sector for one year. (3) The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and shall keep a record of its proceedings. (4) The regular Members of the Council shall receive such emoluments as may be determined by the Supreme Court. The Supreme Court shall provide in its annual budget the appropriations for the Council.

(5) The Council shall have the principal function of

recommending appointees to the Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it.

4 Section 4 Article X of the 1973 Constitution provides: “The Members of the Supreme Court and judges of inferior courts shall be appointed by the President.” 5 1 Records, Constitutional Commission, Proceedings and Debates, p. 487.


In compliance therewith, Congress, from the moment of the creation

of the JBC, designated one representative to sit in the JBC to act as one of

the ex officio members.6 Perhaps in order to give equal opportunity to both

houses to sit in the exclusive body, the House of Representatives and the

Senate would send alternate representatives to the JBC. In other words,

Congress had only one (1) representative.

In 1994, the composition of the JBC was substantially altered. Instead

of having only seven (7) members, an eighth (8th) member was added to the

JBC as two (2) representatives from Congress began sitting in the JBC - one

from the House of Representatives and one from the Senate, with each

having one-half (1/2) of a vote.7 Then, curiously, the JBC En Banc, in

separate meetings held in 2000 and 2001, decided to allow the

representatives from the Senate and the House of Representatives one full

vote each.8 At present, Senator Francis Joseph G. Escudero and

Congressman Niel C. Tupas, Jr. (respondents) simultaneously sit in the JBC

as representatives of the legislature.

It is this practice that petitioner has questioned in this petition,9 setting

forth the following

GROUNDS FOR ALLOWANCE OF THE PETITION

I

Article VIII, Section 8, Paragraph 1 is clear, definite and needs no interpretation in that the JBC shall have only one representative from Congress.

6 List of JBC Chairpersons, Ex-Officio and Regular Members, Ex Officio Secretaries and Consultants, issued by the Office of the Executive Officer, Judicial and Bar Council, rollo, pp. 62-63. 7 Id. 8 Comment of the JBC, p. 80, citing Minutes of the 1st En Banc Executive Meeting, January 12, 2000 and Minutes of the 12th En Banc Meeting, May 30, 2001. 9 Rollo, pp. 3-69.


II

The framers of the Constitution clearly envisioned, contemplated and decided on a JBC composed of only seven (7) members.

III

Had the framers of the Constitution intended that the JBC

composed of the one member from the Senate and one member from the House of Representatives, they could have easily said so as they did in the other provisions of the Constitution.

IV

The composition of the JBC providing for three ex-

officio members is purposely designed for a balanced representation of each of the three branches of the government.

V

One of the two (2) members of the JBC from Congress

has no right (not even ½ right) to sit in the said constitutional body and perform the duties and functions of a member thereof.

VI

The JBC cannot conduct valid proceedings as its

composition is illegal and unconstitutional.10 On July 9, 2012, the JBC filed its Comment.11 It, however, abstained

from recommending on how this constitutional issue should be disposed in

gracious deference to the wisdom of the Court. Nonetheless, the JBC was

more than generous enough to offer the insights of various personalities

previously connected with it.12

Through the Office of the Solicitor General (OSG), respondents

defended their position as members of the JBC in their Comment13 filed on

10 Id. at 17-18. 11 Id. at 76-106. 12 Id. at 80. 13 Id. at 117-163.


July 12, 2012. According to them, the crux of the controversy is the phrase

“a representative of Congress.”14 Reverting to the basics, they cite Section

1, Article VI of the Constitution15 to determine the meaning of the term

“Congress.” It is their theory that the two houses, the Senate and the House

of Representatives, are permanent and mandatory components of

“Congress,” such that the absence of either divests the term of its substantive

meaning as expressed under the Constitution. In simplistic terms, the House

of Representatives, without the Senate and vice-versa, is not Congress.16

Bicameralism, as the system of choice by the Framers, requires that both

houses exercise their respective powers in the performance of its mandated

duty which is to legislate. Thus, when Section 8(1), Article VIII of the

Constitution speaks of “a representative from Congress,” it should mean one

representative each from both Houses which comprise the entire Congress.17

Tracing the subject provision’s history, the respondents claim that

when the JBC was established, the Framers originally envisioned a

unicameral legislative body, thereby allocating “a representative of the

National Assembly” to the JBC. The phrase, however, was not modified to

aptly jive with the change to bicameralism, the legislative system finally

adopted by the Constitutional Commission on July 21, 1986. According to

respondents, if the Commissioners were made aware of the consequence of

having a bicameral legislature instead of a unicameral one, they would have

made the corresponding adjustment in the representation of Congress in the

JBC.18

The ambiguity having resulted from a plain case of inadvertence, the

respondents urge the Court to look beyond the letter of the disputed

14 Id. at 142. 15 “The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.” 16 Id. 17 Rollo, p. 143. 18 Id. at 148.


provision because the literal adherence to its language would produce

absurdity and incongruity to the bicameral nature of Congress.19 In other

words, placing either of the respondents in the JBC will effectively deprive a

house of Congress of its representation. In the same vein, the electorate

represented by Members of Congress will lose their only opportunity to

participate in the nomination process for the members of the Judiciary,

effectively diminishing the republican nature of the government.20

The respondents further argue that the allowance of two (2)

representatives of Congress to be members of the JBC does not render the

latter’s purpose nugatory. While they admit that the purpose in creating the

JBC was to insulate appointments to the Judiciary from political influence,

they likewise cautioned the Court that this constitutional vision did not

intend to entirely preclude political factor in said appointments. Therefore,

no evil should be perceived in the current set-up of the JBC because two (2)

members coming from Congress, whose membership to certain political

parties is irrelevant, does not necessarily amplify political partisanship in the

JBC. In fact, the presence of two (2) members from Congress will most

likely provide balance as against the other six (6) members who are

undeniably presidential appointees.21

The Issues

In resolving the procedural and substantive issues arising from the

petition, as well as the myriad of counter-arguments proffered by the

respondents, the Court synthesized them into two:

(1) Whether or not the conditions sine qua non for the

exercise of the power of judicial review have been met in this case; and

19 Id. 20 Id. 21 Id. at 150-153.


(2) Whether or not the current practice of the JBC to perform its functions with eight (8) members, two (2) of whom are members of Congress, runs counter to the letter and spirit of the 1987 Constitution.

The Power of Judicial Review

In its Comment, the JBC submits that petitioner is clothed with locus

standi to file the petition, as a citizen and taxpayer, who has been nominated

to the position of Chief Justice.22

For the respondents, however, petitioner has no “real interest” in

questioning the constitutionality of the JBC’s current composition.23 As

outlined in jurisprudence, it is well-settled that for locus standi to lie,

petitioner must exhibit that he has been denied, or is about to be denied, of a

personal right or privilege to which he is entitled. Here, petitioner failed to

manifest his acceptance of his recommendation to the position of Chief

Justice, thereby divesting him of a substantial interest in the controversy.

Without his name in the official list of applicants for the post, the

respondents claim that there is no personal stake on the part of petitioner that

would justify his outcry of unconstitutionality. Moreover, the mere

allegation that this case is of transcendental importance does not excuse the

waiver of the rule on locus standi, because, in the first place, the case lacks

the requisites therefor. The respondents also question petitioner’s belated

filing of the petition.24 Being aware that the current composition of the JBC

has been in practice since 1994, petitioner’s silence for eighteen (18) years

show that the constitutional issue being raised before the Court does not

comply with the “earliest possible opportunity” requirement.

22 Id. at 78. 23 Id. at 131. 24 Id. at 131-133.


Before addressing the above issues in seriatim, the Court deems it

proper to first ascertain the nature of the petition. Pursuant to the rule that

the nature of an action is determined by the allegations therein and the

character of the relief sought, the Court views the petition as essentially an

action for declaratory relief under Rule 63 of the 1997 Rules of Civil

Procedure.25

The Constitution as the subject matter, and the validity and

construction of Section 8 (1), Article VIII as the issue raised, the petition

should properly be considered as that which would result in the adjudication

of rights sans the execution process because the only relief to be granted is

the very declaration of the rights under the document sought to be construed.

It being so, the original jurisdiction over the petition lies with the appropriate

Regional Trial Court (RTC). Notwithstanding the fact that only questions of

law are raised in the petition, an action for declaratory relief is not among

those within the original jurisdiction of this Court as provided in Section 5,

Article VIII of the Constitution.26

25 Section 1. Who may file petition.—Any person interested under a deed, will, contract or other written instrument, whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. x x x 26 1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts. (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (c) All cases in which the jurisdiction of any lower court is in issue. (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. (e) All cases in which only an error or question of law is involved. (3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned. (4) Order a change of venue or place of trial to avoid a miscarriage of justice. (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. (6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law.


At any rate, due to its serious implications, not only to government

processes involved but also to the sanctity of the Constitution, the Court

deems it more prudent to take cognizance of it. After all, the petition is also

for prohibition under Rule 65 seeking to enjoin Congress from sending two

(2) representatives with one (1) full vote each to the JBC.

The Courts’ power of judicial review, like almost all other powers

conferred by the Constitution, is subject to several limitations, namely: (1)

there must be an actual case or controversy calling for the exercise of

judicial power; (2) the person challenging the act must have “standing” to

challenge; he must have a personal and substantial interest in the case, such

that he has sustained or will sustain, direct injury as a result of its

enforcement; (3) the question of constitutionality must be raised at the

earliest possible opportunity; and (4) the issue of constitutionality must be

the very lis mota of the case.27 Generally, a party will be allowed to litigate

only when these conditions sine qua non are present, especially when the

constitutionality of an act by a co-equal branch of government is put in

issue.

Anent locus standi, the question to be answered is this: does the party

possess a personal stake in the outcome of the controversy as to assure that

there is real, concrete and legal conflict of rights and duties from the issues

presented before the Court? In David v. Macapagal-Arroyo,28 the Court

summarized the rules on locus standi as culled from jurisprudence. There, it

was held that taxpayers, voters, concerned citizens, and legislators may be

accorded standing to sue, provided that the following requirements are met:

(1) cases involve constitutional issues; (2) for taxpayers, there must be a

claim of illegal disbursement of public funds or that the tax measure is

unconstitutional; (3) for voters, there must be a showing of obvious interest

in the validity of the election law in question; (4) for concerned citizens, 27 Senate of the Philippines v. Ermita, 522 Phil. 1, 27 (2006). 28 522 Phil. 705 (2006).


there must be a showing that the issues raised are of transcendental

importance which must be settled early; and (5) for legislators, there must be

a claim that the official action complained of infringes upon their

prerogatives as legislators.

In public suits, the plaintiff, representing the general public, asserts a

“public right” in assailing an allegedly illegal official action. The plaintiff

may be a person who is affected no differently from any other person, and

can be suing as a “stranger,” or as a “citizen” or “taxpayer.” Thus, taxpayers

have been allowed to sue where there is a claim that public funds are

illegally disbursed or that public money is being deflected to any improper

purpose, or that public funds are wasted through the enforcement of an

invalid or unconstitutional law. Of greater import than the damage caused by

the illegal expenditure of public funds is the mortal wound inflicted upon the

fundamental law by the enforcement of an invalid statute.29

In this case, petitioner seeks judicial intervention as a taxpayer, a

concerned citizen and a nominee to the position of Chief Justice of the

Supreme Court. As a taxpayer, petitioner invokes his right to demand that

the taxes he and the rest of the citizenry have been paying to the government

are spent for lawful purposes. According to petitioner, “since the JBC

derives financial support for its functions, operation and proceedings from

taxes paid, petitioner possesses as taxpayer both right and legal standing to

demand that the JBC’s proceedings are not tainted with illegality and that its

composition and actions do not violate the Constitution.”30

Notably, petitioner takes pains in enumerating past actions that he had

brought before the Court where his legal standing was sustained. Although

this inventory is unnecessary to establish locus standi because obviously, not

every case before the Court exhibits similar issues and facts, the Court 29 LAMP v. The Secretary of Budget and Management, G.R. No. 164987, April 24, 2012. 30 Rollo, p. 6.


recognizes the petitioner’s right to sue in this case. Clearly, petitioner has the

legal standing to bring the present action because he has a personal stake in

the outcome of this controversy.

The Court disagrees with the respondents’ contention that petitioner

lost his standing to sue because he is not an official nominee for the post of

Chief Justice. While it is true that a “personal stake” on the case is

imperative to have locus standi, this is not to say that only official nominees

for the post of Chief Justice can come to the Court and question the JBC

composition for being unconstitutional. The JBC likewise screens and

nominates other members of the Judiciary. Albeit heavily publicized in this

regard, the JBC’s duty is not at all limited to the nominations for the highest

magistrate in the land. A vast number of aspirants to judicial posts all over

the country may be affected by the Court’s ruling. More importantly, the

legality of the very process of nominations to the positions in the Judiciary is

the nucleus of the controversy. The Court considers this a constitutional

issue that must be passed upon, lest a constitutional process be plagued by

misgivings, doubts and worse, mistrust. Hence, a citizen has a right to bring

this question to the Court, clothed with legal standing and at the same time,

armed with issues of transcendental importance to society. The claim that

the composition of the JBC is illegal and unconstitutional is an object of

concern, not just for a nominee to a judicial post, but for all citizens who

have the right to seek judicial intervention for rectification of legal blunders.

With respect to the question of transcendental importance, it is not

difficult to perceive from the opposing arguments of the parties that the

determinants established in jurisprudence are attendant in this case: (1) the

character of the funds or other assets involved in the case; (2) the presence

of a clear case of disregard of a constitutional or statutory prohibition by the

public respondent agency or instrumentality of the government; and (3) the

lack of any other party with a more direct and specific interest in the


questions being raised.31 The allegations of constitutional violations in this

case are not empty attacks on the wisdom of the other branches of the

government. The allegations are substantiated by facts and, therefore,

deserve an evaluation from the Court. The Court need not elaborate on the

legal and societal ramifications of the issues raised. It cannot be gainsaid

that the JBC is a constitutional innovation crucial in the selection of the

magistrates in our judicial system.

The Composition of the JBC

Central to the resolution of the foregoing petition is an understanding

of the composition of the JBC as stated in the first paragraph of Section 8,

Article VIII of the Constitution. It reads:

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.

From a simple reading of the above-quoted provision, it can readily be

discerned that the provision is clear and unambiguous. The first paragraph

calls for the creation of a JBC and places the same under the supervision of

the Court. Then it goes to its composition where the regular members are

enumerated: a representative of the Integrated Bar, a professor of law, a

retired member of the Court and a representative from the private sector. On

the second part lies the crux of the present controversy. It enumerates the ex

officio or special members of the JBC composed of the Chief Justice, who

shall be its Chairman, the Secretary of Justice and “a representative of

Congress.”

31 Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899 (2003), citing Kilosbayan v. Guingona, G.R. No. 113375, May 5, 1994, 232 SCRA 110, 155-157.


As petitioner correctly posits, the use of the singular letter “a”

preceding “representative of Congress” is unequivocal and leaves no room

for any other construction. It is indicative of what the members of the

Constitutional Commission had in mind, that is, Congress may designate

only one (1) representative to the JBC. Had it been the intention that more

than one (1) representative from the legislature would sit in the JBC, the

Framers could have, in no uncertain terms, so provided.

One of the primary and basic rules in statutory construction is that

where the words of a statute are clear, plain, and free from ambiguity, it must

be given its literal meaning and applied without attempted interpretation.32 It

is a well-settled principle of constitutional construction that the language

employed in the Constitution must be given their ordinary meaning except

where technical terms are employed. As much as possible, the words of the

Constitution should be understood in the sense they have in common use.

What it says according to the text of the provision to be construed compels

acceptance and negates the power of the courts to alter it, based on the

postulate that the framers and the people mean what they say.33 Verba legis

non est recedendum – from the words of a statute there should be no

departure.34

The raison d’ être for the rule is essentially two-fold: First, because it

is assumed that the words in which constitutional provisions are couched

express the objective sought to be attained;35 and second, because the

Constitution is not primarily a lawyer’s document but essentially that of the

people, in whose consciousness it should ever be present as an important

condition for the rule of law to prevail. 36

32 National Food Authority (NFA) v. Masada Security Agency, Inc., 493 Phil. 241, 250 (2005); Philippine National Bank v. Garcia, Jr., 437 Phil. 289 (2002). 33 Francisco, Jr. v. House of Representatives, supra note 31 at 885, citing J.M. Tuason & Co., Inc. v. Land Tenure Administration, L-21064, February 18, 1970, 31 SCRA 413. 34 Id. 35 Id. 36 Id.


Moreover, under the maxim noscitur a sociis, where a particular word

or phrase is ambiguous in itself or is equally susceptible of various

meanings, its correct construction may be made clear and specific by

considering the company of words in which it is founded or with which it is

associated.37 This is because a word or phrase in a statute is always used in

association with other words or phrases, and its meaning may, thus, be

modified or restricted by the latter.38 The particular words, clauses and

phrases should not be studied as detached and isolated expressions, but the

whole and every part of the statute must be considered in fixing the meaning

of any of its parts and in order to produce a harmonious whole. A statute

must be so construed as to harmonize and give effect to all its provisions

whenever possible.39 In short, every meaning to be given to each word or

phrase must be ascertained from the context of the body of the statute since a

word or phrase in a statute is always used in association with other words or

phrases and its meaning may be modified or restricted by the latter.

Applying the foregoing principle to this case, it becomes apparent that

the word “Congress” used in Article VIII, Section 8(1) of the Constitution is

used in its generic sense. No particular allusion whatsoever is made on

whether the Senate or the House of Representatives is being referred to, but

that, in either case, only a singular representative may be allowed to sit in

the JBC. The foregoing declaration is but sensible, since, as pointed out by

an esteemed former member of the Court and consultant of the JBC in his

memorandum,40 “from the enumeration of the membership of the JBC, it is

patent that each category of members pertained to a single individual

only.”41

37 Coca-Cola Bottlers, Phils., Inc. (CCBPI), Naga Plant v. Gomez, G.R. No. 154491, November 14, 2008, 571 SCRA 18, 37; People v. Delantar, G.R. No. 169143, February 2, 2007, 514 SCRA 115, 139; and Republic v. Sandiganbayan, 255 Phil. 71 (1989), citing Co Kim Chan v. Valdez Tan Keh and Dizon, 75 Phil. 371 (1945). 38 People v. Delantar, G.R. No. 169143, February 2, 2007, 514 SCRA 115, 139; Republic v. Sandiganbayan, 255 Phil. 71 (1989), citing Co Kim Chan v. Valdez, 75 Phil. 371 (1945). 39 Uy v. Sandiganbayan, 407 Phil. 154, 180 (2001). 40 Memorandum of Associate Justice Leonardo A. Quisimbing, dated March 14, 2007; rollo, p. 95-103. 41 Id. at 103.


Indeed, the spirit and reason of the statute may be passed upon where

a literal meaning would lead to absurdity, contradiction, injustice, or defeat

the clear purpose of the lawmakers.42 Not any of these instances, however, is

present in the case at bench. Considering that the language of the subject

constitutional provision is plain and unambiguous, there is no need to resort

extrinsic aids such as records of the Constitutional Commission.

Nevertheless, even if the Court should proceed to look into the minds

of the members of the Constitutional Commission, it is undeniable from the

records thereof that it was intended that the JBC be composed of seven (7)

members only. Thus:

MR. RODRIGO: Let me go to another point then. On page 2, Section 5, there is a novel provision about the

appointments of members of the Supreme Court and judges of the lower courts. At present it is the President who appoints them. If there is a Commission on Appointments, then it is the President with the confirmation of the Commission on Appointment. In this proposal, we would like to establish a new office, a sort of a board composed of seven members called the Judicial and Bar Council. And while the President will still appoint the member of the judiciary, he will be limited to the recommendees of this Council.

xxx xxx xxx MR. RODRIGO. Of the seven members of the Judicial and Bar

Council, the President appoints four of them who are regular members.

xxx xxx xxx MR. CONCEPCION. The only purpose of the Committee is to

eliminate partisan politics.43

xxx xxx xxx

MR. RODRIGO. If my amendment is approved, then the provision will be exactly the same as the provision in the 1935 Constitution, Article VIII, Section 5.

42 Ursua v. Court of Appeals, 326 Phil. 157, 163 (1996). 43 1 Records of the Constitutional Commission Proceedings and Debates, p. 445.


xxx xxx xxx If we do not remove the proposed amendment on the creation

of the Judicial and Bar Council, this will be a diminution of the appointing power of the highest magistrate of the land, of the President of the Philippines elected by all the Filipino people. The appointing power will be limited by a group of seven people who are not elected by the people but only appointed.

Mr. Presiding Officer, if this Council is created, there will be no

uniformity in our constitutional provisions on appointments. The members of the Judiciary will be segregated from the rest of the government. Even a municipal judge cannot be appointed by the President except upon recommendation or nomination of the three names by this Committee of seven people, commissioners of the Commission on Elections, the COA and the Commission on Civil Service…even ambassadors, generals of the Army will not come under this restriction. Why are we going to segregate the Judiciary from the rest of our government in the appointment of high-ranking officials?

Another reason is that this Council will be ineffective. It will just

besmirch the honor of our President without being effective at all because this Council will be under the influence of the President. Four out of seven are appointees of the President and they can be reappointed when their term ends. Therefore, they would be kowtow the President. A fifth member is the Minister of Justice, an alter ego of the President. Another member represents the Legislature. In all probability, the controlling part in the legislature belongs to the President and, therefore, this representative form the National Assembly is also under the influence of the President. And may I say, Mr. Presiding Officer, that event the Chief Justice of the Supreme Court is an appointee of the President. So it is futile he will be influence anyway by the President.44 [Emphases supplied]

At this juncture, it is worthy to note that the seven-member

composition of the JBC serves a practical purpose, that is, to provide a

solution should there be a stalemate in voting. This underlying reason leads

the Court to conclude that a single vote may not be divided into half (1/2),

between two representatives of Congress, or among any of the sitting

members of the JBC for that matter. This unsanctioned practice can possibly

cause disorder and eventually muddle the JBC’s voting process, especially in

the event a tie is reached. The aforesaid purpose would then be rendered

illusory, defeating the precise mechanism which the Constitution itself

created. While it would be unreasonable to expect that the Framers provide

44 1 Records of the Constitutional Commission Proceedings and Debates, pp.486-487.


for every possible scenario, it is sensible to presume that they knew that an

odd composition is the best means to break a voting deadlock.

The respondents insist that owing to the bicameral nature of Congress,

the word “Congress” in Section 8(1), Article VIII of the Constitution should

be read as including both the Senate and the House of Representatives. They

theorize that it was so worded because at the time the said provision was

being drafted, the Framers initially intended a unicameral form of Congress.

Then, when the Constitutional Commission eventually adopted a bicameral

form of Congress, the Framers, through oversight, failed to amend Article

VIII, Section 8 of the Constitution.45 On this score, the Court cites the

insightful analysis of another member of the Court and JBC consultant,

retired Justice Consuelo Ynares-Santiago.46 Thus:

A perusal of the records of the Constitutional Commission

reveals that the composition of the JBC reflects the Commission’s desire “to have in the Council a representation for the major elements of the community.” xxx The ex-officio members of the Council consist of representatives from the three main branches of government while the regular members are composed of various stakeholders in the judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-officio member as representing one co-equal branch of government. xxx Thus, the JBC was designed to have seven voting members with the three ex-officio members having equal say in the choice of judicial nominees.

xxx xx No parallelism can be drawn between the representative of

Congress in the JBC and the exercise by Congress of its legislative powers under Article VI and constituent powers under Article XVII of the Constitution. Congress, in relation to the executive and judicial branches of government, is constitutionally treated as another co-equal branch of in the matter of its representative in the JBC. On the other hand, the exercise of legislative and constituent powers requires the Senate and House of Representatives to coordinate and act as distinct bodies in furtherance of Congress’ role under our constitutional scheme. While the latter justifies and, in fact, necessitates the separateness of the two houses of Congress as they relate inter se, no such dichotomy need be made when Congress interacts with the other two co-equal branches of government.

45 Comment of Respondents, rollo, pp. 142-146. 46 Comment of JBC; id. at 91-93.


It is more in keeping with the co-equal nature of the three

governmental branches to assign the same weight to considerations that any of its representatives may have regarding aspiring nominees to the judiciary. The representatives of the Senate and the House of Representatives act as such for one branch and should not have any more quantitative influence as the other branches in the exercise of prerogatives evenly bestowed upon the three. Sound reason and principle of equality among the three branches support this conclusion. [Emphases and underscoring supplied]

More than the reasoning provided in the above discussed rules of

constitutional construction, the Court finds the above thesis as the paramount

justification of the Court’s conclusion that “Congress,” in the context of JBC

representation, should be considered as one body. It is evident that the

definition of “Congress” as a bicameral body refers to its primary function in

government - to legislate.47 In the passage of laws, the Constitution is

explicit in the distinction of the role of each house in the process. The same

holds true in Congress’ non-legislative powers such as, inter alia, the power

of appropriation,48 the declaration of an existence of a state of war,49

canvassing of electoral returns for the President and Vice-President,50 and

47 1987 Constitution, Article 6 Section 27(1) - Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had signed it. 48 1987 Constitution, Article 6 Section 24 - All appropriation, revenue or tariff bills, bills authorizing increase of public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments. 49 1987 Constitution, Article 6 Section 23 (1) - The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. 50 1987 Constitution, Article 7 Section 4 - The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes. The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately.


impeachment.51 In the exercise of these powers, the Constitution employs

precise language in laying down the roles which a particular house plays,

regardless of whether the two houses consummate an official act by voting

jointly or separately. An inter-play between the two houses is necessary in

the realization of these powers causing a vivid dichotomy that the Court

cannot simply discount. Verily, each house is constitutionally granted with

powers and functions peculiar to its nature and with keen consideration to 1)

its relationship with the other chamber; and 2) in consonance with the

principle of checks and balances, to the other branches of government.

This, however, cannot be said in the case of JBC representation

because no liaison between the two houses exists in the workings of the

JBC. No mechanism is required between the Senate and the House of

Representatives in the screening and nomination of judicial officers. Hence,

the term “Congress” must be taken to mean the entire legislative department.

A fortiori, a pretext of oversight cannot prevail over the more pragmatic

scheme which the Constitution laid with firmness, that is, that the JBC has a

seat for a single representative of Congress, as one of the co-equal branches

of government.

Doubtless, the Framers of our Constitution intended to create a JBC as

an innovative solution in response to the public clamor in favor of

eliminating politics in the appointment of members of the Judiciary.52 To

ensure judicial independence, they adopted a holistic approach and hoped

that, in creating a JBC, the private sector and the three branches of

government would have an active role and equal voice in the selection of the

members of the Judiciary. 51 1987 Constitution, Article 11 Section 3 (1) - The House of Representatives shall have the exclusive power to initiate all cases of impeachment. xxx (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. 52 1 Records of the Constitutional Commission Proceedings and Debates Records of the Constitutional Convention, p. 487.


Therefore, to allow the Legislature to have more quantitative influence

in the JBC by having more than one voice speak, whether with one full vote

or one-half (1/2) a vote each, would, as one former congressman and

member of the JBC put it, “negate the principle of equality among the three

branches of government which is enshrined in the Constitution.”53

To quote one former Secretary of Justice:

The present imbalance in voting power between the Legislative

and the other sectors represented in the JBC must be corrected especially when considered vis-à-vis the avowed purpose for its creation, i.e., to insulate the appointments in the Judiciary against political influence. By allowing both houses of Congress to have a representative in the JBC and by giving each representative one (1) vote in the Council, Congress, as compared to the other members of the JBC, is accorded greater and unwarranted influence in the appointment of judges.54 [Emphasis supplied]

It is clear, therefore, that the Constitution mandates that the JBC be

composed of seven (7) members only. Thus, any inclusion of another

member, whether with one whole vote or half (1/2) of it, goes against that

mandate. Section 8(1), Article VIII of the Constitution, providing Congress

with an equal voice with other members of the JBC in recommending

appointees to the Judiciary is explicit. Any circumvention of the

constitutional mandate should not be countenanced for the Constitution is

the supreme law of the land. The Constitution is the basic and paramount

law to which all other laws must conform and to which all persons,

including the highest officials of the land, must defer. Constitutional

doctrines must remain steadfast no matter what may be the tides of time. It

cannot be simply made to sway and accommodate the call of situations and

much more tailor itself to the whims and caprices of the government and the

people who run it.55 Hence, any act of the government or of a public official

or employee which is contrary to the Constitution is illegal, null and void.

53 Comment of the JBC, rollo, p. 104. 54 Memorandum of Justice Secretary Agnes VST Devanadera, Comment of the JBC, id. at 105-106. 55 Louis "Barok" C. Biraogo v. The Philippine Truth Commission of 2010, G.R. No. 192935, December 7, 2010, 637 SCRA 78, 137-138, citing Cruz, Philippine Political law, 2002 ed. p. 12.


As to the effect of the Court’s finding that the current composition of

the JBC is unconstitutional, it bears mentioning that as a general rule, an

unconstitutional act is not a law; it confers no rights; it imposes no duties; it

affords no protection; it creates no office; it is inoperative as if it has not

been passed at all.56 This rule, however, is not absolute. In the interest of

fair play under the doctrine of operative facts, actions previous to the

declaration of unconstitutionality are legally recognized. They are not

nullified. In Planters Products, Inc. v. Fertiphil Corporation,57 the Court

explained:

The doctrine of operative fact, as an exception to the general

rule, only applies as a matter of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration.

The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by a municipality in reliance upon a law creating it.

Considering the circumstances, the Court finds the exception

applicable in this case and holds that notwithstanding its finding of

unconstitutionality in the current composition of the JBC, all its prior official

actions are nonetheless valid.

At this point, the Court takes the initiative to clarify that it is not in a

position to determine as to who should remain as the sole representative of

Congress in the JBC. This is a matter beyond the province of the Court and

is best left to the determination of Congress.

56 Claudio S. Yap v. Thennamaris Ship's Management and Intermare Maritime Agencies Inc., G.R. No. 179532, May 30, 2011, 649 SCRA 369, 380. 57 G.R. No. 166006, March 14, 2008, 548 SCRA 485, 516-517.

DECISION 23 GR. No. 202242

finally, while the Court finds wisdom in respondents' contention that

both the Senate and the House of Representatives should be equally

represented in the JBC, the Court is not in a position to stamp its imprimatur

on such a construction at the risk of expanding the meaning of the

Constitution as currently worded. Needless to state, the remedy lies in the

amendment of this constitutional provision. The courts merely give effect to

the lawgiver's intent. The solemn power and duty of the Court to interpret

and apply the law does not include the power to correct, by reading into the

law what is not written therein.

WHEREFOilE, the petition is GRANTED. The current numerical

composition of the Judicial and Bar Council IS declared

UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined

to reconstitute itself so that only one ( 1) member of Congress will sit as a

representative in its proceedings, in accordance with Section 8( 1 ), Article

VI I I of the 1987 Constitution.

This disposition is immediately executory.

SO ORDEI~ED.

JOSE CA~NDOZA As~~~:~J

1

~:~ce

DECISION

WE CONCUR:

~o C~!+S

PRES Associate Justice

(No Part) (On Leave)

ARTURO D. BRION Associate Justice

>u~ ~~n~ o(iV\it>Y\ •

~ ROBERTO A. ABAD

Associate .Justice

Associate J u~;tice

24 GR. No. 202242

Senior Associate Justice

1to f~.-d tho..~ .,o/A~ ~~ ~~~~~..!lie~ ~ /~A&.-~~-~C,[

,_...-r- - (No part) ~~.... tP~

TERESITAJ. LEONARDO-DE CASTRO Associate Justice

It;;,_,!-~ ~~ fi aid "AA...~~~t?

MARIANO C. DEL CASTILLO Associate Justice

Ju; ~ ~ 0(_ /vd-n--:_fU. ~ CJ. ~

(No part) MARIA LOURDES P. A. SERENO

Associate Justice

DECISION 25 GR. No. 202242

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

ANTONIO T. CARPIO Senior Associate Justice

(Per Section 12, R.A. No. 296, The Judiciary Act of 1948, as amended)

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