Chavez vs JBC

Facts:
The departure of Chief Justice Renato Corona on May 29, 2012, and the
nomination of former Solicitor General Francisco Chavez (petitioner), as his
potential successor, triggered the filing of this case.
From the birth of the Philippine Republic, the exercise of appointing members of
the Judiciary has always been the exclusive prerogative of the executive and
legislative branches of the government. Both the Malolos Constitution and the
1935 Constitution vested the power to appoint the members of the Judiciary in
the President, subject to confirmation by the Commission on Appointments.
Then, with the fusion of executive and legislative power under the 1973
Constitution, 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, 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:
o (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.
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. 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.
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. At present, Respondents Senator Francis
Joseph Escudero and Congressman Niel Tupas, Jr. simultaneously sit in the JBC as
representatives of the legislature.
Respondents contend that the phrase "a representative of Congress" should
mean one representative each from both Houses which comprise the entire
Congress, because Congress is bicameral and the absence of either divests the
term of its substantive meaning. In simplistic terms, the House of

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

either of the respondents in the JBC will effectively deprive a house of Congress
of its representation.
Respondents further contend that 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.

Issues:
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? NO.
Is the practice of having two (2) representatives from each house of Congress with
one (1) vote each sanctioned by the Constitution? NO.
Held:
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.
From a simple reading of the above-quoted provision, it can readily be
discerned that the provision is clear and unambiguous. Thus, it must be given
its literal meaning and applied without attempted interpretation.
The use of the singular letter "a" preceding "representative of Congress" is
unequivocal and leaves no room for any other construction.
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, "from the enumeration of the membership of the JBC, it is
patent that each category of members pertained to a single individual only."
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, it is undeniable from the records thereof that it was
intended that the JBC be composed of seven (7) members only.
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/deadlock 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.
By virtue of the principle of equality among the three branches of government, no
dichotomy in Congress need be made since it interacts with the other two co-equal
branches of government.

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.
On this score, the Court cites the insightful analysis of another member of the
Court and JBC consultant, retired Justice Consuelo Ynares-Santiago.
The unmistakeable tenor of Article VIII, Section 8(1) was to treat each
ex-officio member as representing one co-equal branch of government.
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.
Therefore, 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.
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.
"Congress," in the context of JBC representation, should be considered as one
body.
The same holds true in Congress non-legislative powers such as, inter
alia, the power of appropriation, the declaration of an existence of a
state of war, canvassing of electoral returns for the President and VicePresident, and impeachment.

The current composition of the JBC is unconstitutional.

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.
However, this rule is not absolute. Under the doctrine of operative facts,
actions previous to the declaration of unconstitutionality are legally
recognized. They are not nullified.
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.
The Court found that the exception applicable in this case and held that
notwithstanding its finding of unconstitutionality in the current composition of
the JBC, all its prior official actions are nonetheless valid.

The Court clarified that it is not in a position to determine as to who should remain
as the sole representative of Congress in the JBC because this is a matter beyond
the province of the Court and is best left to the determination of Congress.
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.
Dispositive portion:
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 VIII of the
1987 Constitution.
Motion for Reconsideration
Through the subject motion, respondents pray that the Court reconsider its decision
and dismiss the petition on the following grounds:
1) that allowing only one representative from Congress in the JBC would lead to
absurdity considering its bicameral nature;
2) that the failure of the Framers to make the proper adjustment when there
was a shift from unilateralism to bicameralism was a plain oversight;
3) that two representatives from Congress would not subvert the intention of the
Framers to insulate the JBC from political partisanship; and
4) that the rationale of the Court in declaring a seven-member composition
would provide a solution should there be a stalemate is not exactly correct.
The Constitution evinces the direct action of the Filipino people by which the
fundamental powers of government are established, limited and defined and by
which those powers are distributed among the several departments for their safe
and useful exercise for the benefit of the body politic. Thus, in the interpretation of
the constitutional provisions, the Court firmly relies on the basic postulate that the
Framers mean what they say.
For this reason, the Court cannot accede to the argument of plain oversight in
order to justify constitutional construction. As stated in the July 17, 2012
Decision, in opting to use the singular letter "a" to describe "representative of
Congress," the Filipino people through the Framers intended that Congress be
entitled to only one (1) seat in the JBC. Had the intention been otherwise, the
Constitution could have, in no uncertain terms, so provided, as can be read in
its other provisions.
A reading of the 1987 Constitution would reveal that several provisions were
indeed adjusted as to be in tune with the shift to bicameralism. Thus, to say
that the Framers simply failed to adjust Section 8, Article VIII, by sheer

inadvertence, to their decision to shift to a bicameral form of the legislature,

is not persuasive enough.
Dissenting Opinion of Justice Abad on the Judgment and MR
To insist that only one member of Congress from either the Senate or the House of
Representatives should sit at any time in the JBC, is to ignore the fact that while
these two houses of Congress are involved in the common task of making laws, they
are separate and distinct.
Senators are elected by the people at large, while the Members of the House
of Representatives, by their respective districts or sectors.
Clearly, neither the Senate nor the House of Representatives can by itself
claim to represent the Congress. Those who drafted Section 8(1) did not
intend to limit the term "Congress" to just either of the two Houses.
The framers of the 1987 Constitution did not intend to limit the term "Congress" to
just either of the two Houses as can be seen from the words that they used in
crafting Section 8(1).
While the provision provides for just "a representative of the Congress," it
also provides that such representation is "ex officio" or "by virtue of one's
office, or position."
Under the Senate rules, the Chairperson of its Justice Committee is
automatically the Senate representative to the JBC. In the same way, under
the House of Representatives rules, the Chairperson of its Justice Committee
is the House representative to the JBC. Consequently, there are actually two
persons in Congress who hold separate offices or positions with the attached
function of sitting in the JBC.
If the Court adheres to a literal translation of Section 8(1), no representative
from Congress will qualify as "ex officio" member of the JBC. This would deny
Congress the representation that the framers of the 1987 Constitution
intended it to have.
Having said that the Senate and the House of Representatives should have one
representative each in the JBC, it is logical to conclude that each should also have
the right to cast one full vote in its deliberations.
To split the vote between the two legislators would be an absurdity since it
would diminish their standing and make them second class members of the
JBC, something that the Constitution clearly does not contemplate.
Indeed, the JBC abandoned the half-a-vote practice on January 12, 2000 and
recognized the right of both legislators to cast one full vote each. Only by
recognizing this right can the true spirit and reason of Section 8(1) be
attained.